Legal Analysis: Defendant's Claims of Juror Misconduct and New Evidence, Lecture notes of Law

Download Legal Analysis: Defendant's Claims of Juror Misconduct and New Evidence and more Lecture notes Law in PDF only on Docsity! STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE COUNTY OF DURHAM SUPERIOR COURT OF DIVISION *************************************** STATE OF NORTH CAROLINA ) ) v. ) File No. 01 CRS24821 ) MICHAEL IVER PETERSON ) *************************************** STATE'S RESPONSE TO MOTION FOR APPROPRIATE RELIEF *************************************** The State of North Carolina, by and through Roy Cooper, Attorney General, Dean Bowman, Special Deputy Attorney General, William B. Crumpler, Assistant Attorney General, and John G. Barnwell, Assistant Attorney General, responds to defendant’s motion for appropriate relief (“MAR”) as follows and prays the Court to deny the motion in all respects. PROCEDURAL HISTORY OF THE CASE On 20 December 2001 the Durham County Grand Jury indicted Defendant Michael Iver Peterson (“defendant”) for murdering his wife Kathleen Hunt Peterson on 9 December 2001. The case came on for trial at the 5 May 2003 session of Durham County Superior Court with the Honorable Orlando F. Hudson, Jr., (the “trial judge” or the “Court”) presiding. The State was represented by District Attorney James Hardin (“Mr. Hardin” or “Hardin”), Assistant District Attorney Freda Black (“Ms. Black” or “Black”), and Assistant District Attorney David Saacks (“Mr. Saacks” or “Saacks”). The defendant was represented by lead trial counsel - 2 - David Rudolf (“Mr. Rudolf” or “Rudolf”) and by Thomas Maher. On 10 October 2003 the jury found defendant guilty as charged, and the Court entered judgment, sentencing defendant to life imprisonment without parole as required by law. He appealed to the Court of Appeals, and the case was argued before that Court on 18 April 2006. By an opinion filed 19 September 2006 the Court of Appeals affirmed defendant’s conviction; one judge dissented on three of the five questions presented to that Court. State v. Peterson, 179 N.C. App. 437, 634 S.E.2d 594(2006). Defendant gave notice of appeal and petitioned our Supreme Court for discretionary review as to additional issues. By Order of 25 January 2007 the Court denied defendant’s petition for discretionary review as to additional issues. The case was argued before our Supreme Court on 10 September 2007. By unanimous opinion filed 9 November 2007, State v. Peterson, 361 N.C. 587, 652 S.E.2d 216 (2007), the Court affirmed the decision of the Court of Appeals. The United States Supreme Court denied defendant’s petition for writ of certiorari on 17 March 2008. Defendant now brings post-conviction claims. FACTS The facts of this case are extensive and cannot be reduced to a short summary without diminishing the powerful nature of the evidence produced by the State at trial. The facts demonstrate that defendant could not have suffered any prejudice even if any of - 5 - [Emphasis added.] Subsection (c)(7) of the statute “mandates that ‘the court must make and enter conclusions of law and a statement of the reasons for its determination to the extent required, when taken with other records and transcripts in the case, to indicate whether the defendant has had a full and fair hearing on the merits of the grounds so asserted.’” State v. McHone, 348 N.C. 254, 257, 499 S.E.2d 761, 763 (1998), cert. denied, 528 U.S. 1095, 145 L. Ed. 2d 702 425 (2000). In construing subsection (c)(7), the Court in McHone emphasized that, read in pari materia, it does not expand a defendant’s right to an evidentiary hearing if his MAR does not comply with statutory requirements or if the trial court can determine, on the basis of the materials submitted to it, that defendant’s claims are without merit. The Court held that this subsection of the statute must be read in pari materia with the other provisions of the same statute. Therefore, when a motion for appropriate relief presents only questions of law, including questions of constitutional law, the trial court must determine the motion without an evidentiary hearing. N.C.G.S. § 15A-1420(c)(3); State v. Bush, 307 N.C. 152, 166-67, 297 S.E.2d 563, 574 (1982). Further, if the trial court can determine from the motion and any supporting or opposing information presented that the motion is without merit, it may deny the motion without any hearing either on questions of fact or questions of law, including constitutional questions. N.C.G.S. § 15A-1420(c)(1). Therefore, it does not automatically follow that, because defendant asserted violations of his rights under the Constitution of the United States, he was entitled to present evidence or to a hearing on questions of fact or law. Id. (emphasis added) With regard especially to defendant’s “Grounds Six and Seven” - 6 - defendant has failed to comply with the requirements of N.C.G.S. § 15A-1420(b)(1) and (c)(6). Subsection (b)(1)provides that (1) A motion for appropriate relief made after the entry of judgment must be supported by affidavit or other documentary evidence if based upon the existence or occurrence of facts which are not ascertainable from the records and any transcript of the case or which are not within the knowledge of the judge who hears the motion. (2) The opposing party may file affidavits or other documentary evidence. [Emphasis added.] Subsection (c)(6) provides that a “defendant who seeks relief by motion for appropriate relief must show the existence of the asserted ground for relief. Relief must be denied unless prejudice appears, in accordance with G.S. 15A-1443.” (Emphasis added.) In State v. Aiken, 73 N.C. App. 487, 500-501, 326 S.E.2d 919, 927, appeal dismissed and disc. rev. denied, 313 N.C. 604, 332 S.E.2d 180 (1985), the defendant filed an MAR alleging, among other claims, “ineffective assistance of counsel based on his failure to move to suppress defendant's statement to police, and to contact and call certain defense witnesses, and alleging unconstitutional makeup of the jury pool . . . .” The Court affirmed the trial court’s denial of those claims without an evidentiary hearing, holding as follows: Defendant filed no supporting affidavit and offered no evidence beyond the bare allegations in the motion for appropriate relief. G.S. 15A-1420(c)(6) requires that ‘[a] defendant who seeks relief by motion for appropriate relief must show the existence of the asserted ground for relief. Relief must be denied unless prejudice appears.’ Since defendant did not comply with G.S. 15A-1420(c)(6), the trial court's summary denial of the motion for appropriate relief was not error. - 7 - Id. at 501, 326 S.E.2d at 927. This practice is mirrored in federal collateral review. See, e.g., Nickerson v. Lee, 971 F.2d 1125, 1136 (4th Cir. 1992)("In order to obtain an evidentiary hearing on an ineffective assistance of counsel claim -- or, for that matter, on any claim -- a habeas petitioner must come forward with some evidence that the claim might have merit. Unsupported, conclusory allegations do not entitle a habeas petitioner to an evidentiary hearing."), cert. denied, 507 U.S. 923, 122 L. Ed. 2d 681 (1993); Zettlemoyer v. Fulcomer, 923 F.2d 284, 301 (3rd Cir. )("bald assertions and conclusory allegations do not provide sufficient ground...to require an evidentiary hearing"), cert. denied, 502 U.S. 902, 116 L. Ed. 2d 232 (1991); Ellis v. Lynaugh, 873 F.2d 830, 840 (5th Cir. 1989)(no evidentiary hearing necessary where record is complete or petitioner raised only legal claims resolvable without taking of additional evidence), cert. denied, 493 U.S. 970, 107 L. Ed. 2d 384 (1989). General Response to MAR Grounds One Through Four Defendant presents seven grounds for seeking relief. His presentation is largely argumentative and sensational. Grounds one through four concern a tire iron that was found in William Mitchell’s yard some distance from the Peterson house about the time of the murder. Defendant claims the tire iron had exculpatory value and was of critical importance to the defense. He accuses the State (both law enforcement and prosecution) of prejudicially - 10 - failure to disclose the tire iron evidence impaired his ability to defend himself. His factual allegations are misleading insofar as they indicate that the State concealed the evidence and insofar as they indicate that the evidence was exculpatory or otherwise relevant. The State responds more particularly to certain allegations by defendant as follows. The State violated none of defendant’s constitutional rights regarding the existence of exculpatory evidence (MAR pp. 5-6 ¶ 12). Under rational analysis the evidence of the tire iron would not have affected the conduct of the defense, would not have led to a strengthened defense strategy at trial, and would not have resulted in a different verdict. Without the tire iron defendant still could have presented an unknown intruder defense in addition to or in lieu of the accident defense, and such a defense would not have been enhanced by the evidence of the tire iron. The choice of accident as the means to try to avoid the jury’s determination of the fact that defendant did murder his wife was rational, and in effect defendant wants another chance to go with another theory simply because his first theory did not succeed in avoiding the jury’s determination. SBI Agent Duane Deaver did not describe the murder weapon to Ms. Black in a way that fits the tire iron (MAR p. 7 ¶ 20). The State contended throughout the trial that the weapon probably was an instrument like the blow poke, not that the blow poke was in fact the weapon (MAR p. 7 ¶ 21). - 11 - The State did not violate its duty of disclosure (MAR p. 8 ¶ 25) and did not conceal the discovery of the tire iron (MAR p. 8 ¶ 26). More prompt testing of the tire iron would have revealed no other evidence favorable to the defense than later testing did. As previously indicated, the tire iron was not material to the defense and was not a key nexus supporting the intruder theory (MAR p. 9 ¶¶ 28-29). Earlier disclosure would not have enhanced the defense strategy. Moreover, the State did not conceal the existence of the tire iron, did not prevent defendant from preparing the best, most complete and most informed defense, and did not deprive the court or the jury of relevant evidence. The jury had ample opportunity to decide the truth of the charge against defendant, and in fact did so, and the evidence of the tire iron would not have affected the verdict especially in view of the overwhelming evidence that defendant murdered his wife. (MAR pp. 9- 10 ¶¶ 30-32) Investigator Art Holland told the truth at the hearing on 18 October 2002. The allegation that he committed perjury is false and irresponsible as is the accusation of a violation of the State’s legal and ethical obligations. There was no concealment of evidence and no violation of the State’s duty to disclose exculpatory evidence. (MAR pp. 10-11 ¶¶ 36-39) The tire iron was not exculpatory evidence of immense value for the defense, would not have affected the defense proffered at trial, and would not have provided a reasonable probability of a - 12 - different verdict (MAR p. 14 ¶ 53). The revelatory insight now touted by defendant’s past and present counsel that the unknown intruder defense would have been a better way to avoid the jury’s determination of the truth of the charge is no more than wishful thinking, wishful thinking influenced by the jury’s seeing through the accident defense. The claim now that an unknown intruder was a better defense or a supplementary one to accident is self-serving and pretentious. Mr. Saacks spoke candidly with Mr. Anthony on several occasions as Mr. Anthony was investigating the case and preparing the MAR. When he spoke to Mr. Anthony on 19 September 2008 (MAR p. 14 ¶ 54), he did not know about the tire iron. He did not tell Mr. Anthony, as alleged in the MAR (MAR p. 14 ¶ 54), that “the existence of the tire iron would be ‘harmless,’ due to its collection and testing so late in the trial.” Rather, he said that the tire iron was harmless because it was not the murder weapon and was not exculpatory. After the conversation with Mr. Anthony on 19 September, Mr. Saacks first learned about the tire iron. When he spoke with Tamara Gibbs on 22 September (MAR p. 14 ¶ 55), sometime after Mr. Anthony gave his own interview to Ms. Gibbs, he did not refer to his personal knowledge about the tire iron; he referred to “we” in the sense of the State as an entity because someone with the State apparently had some knowledge about the tool despite Mr. Saacks’s not having such knowledge earlier when he spoke with Mr. Anthony on - 15 - believes that Mr. Mitchell incorrectly recalls that Investigator Holland took notes when he collected the tire iron and asked Mr. Mitchell to write a statement. The overblown accusation that the State engaged in flagrant and egregious violation of a court order and conducted itself by its own rules is false. (MAR p. 25 ¶¶ 85- 86) Additionally, the State did not engage in a systematic pattern of violating court orders and the rules of professional conduct (MAR p. 27 ¶ 93). The slanderous accusation that the State engaged in a knowing and intentional perpetration of fraud on the court is reckless and professionally irresponsible (MAR p. 29 ¶ 102). This Court should demand strict proof from counsel and discipline counsel when he fails to substantiate the accusation. Again Mr. Anthony is engaging in rhetorical flourish consistently with his bluster at the press conference on the courthouse steps. As to the specific allegations regarding Mr. Saacks and the court orders (MAR p. 29 ¶ 103), the discussion with Mr. Anthony occurred during a meeting requested by him. The conversation led to a question from Mr. Anthony that IF Mr. Saacks thought the allegations by the defense were true, would Mr. Saacks view this as a Brady violation. He responded that he did not see the tire iron as material to the case or exculpatory and that to the extent it was a discovery violation, it was harmless since it would have no bearing on the outcome of the trial. Mr. Saacks never conceded any violations and discussed the matter with respect to his opinions - 16 - 1It should be noted that defendant sharply contested the competency of the investigation during trial, to no avail. Among other things, he called two expert witnesses in this respect, Dr. Henry Lee and Major Timothy Palmbach. Their testimony is summarized in the attached statement of the facts, pages 33-35. While bringing some levity to the trial, Dr. Lee commented that the Durham Police Department did a pretty good job at the crime scene. His testimony actually reinforced that of SBI Agent Duane Deaver rather than undercutting it. (See pages 34-35 of the attached statement of the facts.) and outlook as he had done in many other cases with many other attorneys. He had no expectation that what he said as one lawyer to another, in the way that lawyers frequently do, would be so taken out of context and misused in the MAR. None of defendant’s rights were violated as claimed in the third ground. There was no improper or prejudicial conduct on the part of the State. The ground has no merit and should be rejected by the Court. IV. In his fourth ground defendant essentially contends that the State botched the investigation of this case. He says the State failed to conduct an unbiased investigation, failed to diligently gather and test physical evidence in a timely fashion and properly investigate leads, and failed to keep and turn over notes properly. He even provides an attachment summarizing various investigative errors. He contends that his right to a fair trial was violated by these failures. The State regrets that its investigation did not meet defendant’s expectations,1 but elevating any shortcomings in the - 17 - investigation to the level of a constitutional fair trial violation is stretching the fair trial right to the point of absurdity. One cannot read the transcript of defendant’s trial and the material associated with the appellate proceedings without appreciating that Peterson received all the fairness, and more, that he was entitled to at trial. The trial court was scrupulous in assuring that the trial was fair. His novel view that a faulty pretrial investigation begets an unfair trial deserves quick and summary disposition by this Court. More particularly, it should be noted that defendant could have raised this ground upon his previous appeal but did not do so. Hence this Court should deny this specific claim for relief without a hearing. N.C.G.S. § 15A-1419(a)(3) (2007). Furthermore, the ground is not included within N.C.G.S. § 15A- 1415(b) as a ground that may be asserted by his MAR and thus should be dismissed by the Court. The ground is also subject to summary disposition without hearing under N.C.G.S. § 15A-1420(c)(1) and (3) because its factual basis clearly does not give rise to a claim of error at trial that bears upon the fair trial right. Pursuant to subsection (c) the Court is entitled to rule on the ground as a matter of law inasmuch as the claim has no merit. No findings of fact are necessary in this regard. In light of the foregoing, the State prays this Court to reject summarily, without hearing, defendant’s fourth ground. In all events, as with his other grounds, defendant has the burden to - 20 - Mr. Mitchell’s having been intimidated as a witness, and Mr. Saacks responded appropriately and explained his response to Mr. Anthony. Mr. Anthony’s pretense that Mr. Saacks acted with ulterior motives or acted incorrectly is unprofessional. His attempt to make an intimidation issue out of something he precipitated should not be well received by this Court. None of defendant’s rights were violated as claimed in the fourth ground. There was no improper or prejudicial conduct on the part of the State. There was no improper or prejudicial failure to act on the part of the State. The ground has no merit and should be rejected by the Court. DEFENDANT’S GROUND FIVE: ALLEGATION OF NEWLY DISCOVERED EVIDENCE REGARDING TESTIMONY OF SAAMI SHAIBANI [MAR paragraphs 155-183] Summary Response Saami Shaibani committed perjury in testifying about his background, specifically his academic affiliation with Temple University. He perjured himself in this case and certainly one other, from the transcript of which Rudolf quoted as he cross- examined Shaibani. Despite the Court’s instructions to the jury that all of Shaibani’s evidence was stricken and to disregard it entirely, defendant complains that he was prejudiced by Shaibani’s testimony on direct examination. Defendant fails to acknowledge that the officer of the court who could most readily have prevented the jury from ever hearing Shaibani or anything about him was David Rudolf, the defendant’s - 21 - lead counsel. Mr. Rudolf refused repeated opportunities to examine Shaibani on voir dire in the absence of the jury. A voir dire in the presence of a jury is nonsensical, but that is precisely what Rudolf wanted to do for tactical reasons. When the Court rejected the notion of a so-called voir dire in the presence of the jury, Rudolf withdrew his request for voir dire and stated he would bring out the information he had on Shaibani in cross- examination. The evidence about Shaibani (Wisconsin v. Plude, 310 Wis. 2d 28, 750 N.W.2d 42 (2008)) which defendant says is newly discovered evidence entitling him to a new trial fails to meet the North Carolina test for such evidence in at least three crucial respects: it is cumulative, it merely impeaches a former witness, and it is not evidence of such significance that a different result would probably be reached at a new trial. See, State v. Beaver, 291 N.C. 137, 143, 229 S.E.2d 179, 183 (1976). Detailed Response A. Colloquies Between the Court and the Parties About Examination of Shaibani’s Credentials and Cross-Examination of Shaibani 1. Voir dire “denotes the preliminary examination which the court - 22 - may make of one presented as a witness or juror, where his competency, interest, etc., is objected to.” Black’s Law Dictionary 1412 (5th ed. 1979). The whole purpose of inquiry into the nature and substance of evidence by voir dire is to determine whether the witness is competent and his or her testimony is admissible before the jurors are exposed to it. Obviously that requires that voir dire examinations of witnesses be conducted in the absence of the jury. See, e.g., State v. Fletcher, 322 N.C. 415, 420-21, 368 S.E.2d 633, 636 (1988)(Before permitting testimony to jury by child witness, trial court held voir dire hearing for “the court to be able to determine” whether she met the test for being a competent witness); State v. Grooms, 353 N.C. 50, 76, 540 S.E.2d 713, 729 (2000)(before permitting witnesses to testify before the jury the trial court conducted voir dire to determine whether “the prior acts [to which they would testify] were . . . admissible under . . . Rule 404(b)”), cert. denied, 534 U.S. 838, 151 L. Ed. 2d 54 (2001); State v. Gunter, 2007 N.C. App. LEXIS 1302 at * 7 (19 June 2007)(unpublished)(State examined Deputy Sheriff as to his qualifications and tendered him as an expert in the manufacture of methamphetamine; “the trial court conducted a voir dire hearing outside the presence of the jury” and indicated at the close of voir dire how it would rule). In MAR paragraphs 155-168 the defendant gives his account of the reception of Shaibani’s testimony. What defendant’s fails to acknowledge is that, before Shaibani was accepted by the Court as - 25 - testified further that his “specialty as a clinical professor is injury mechanisms analysis.” He also testified that he had been qualified in North Carolina courts nine times as an expert in the “field of injury mechanism analysis” and “physics.” (68: 12531-33, 12549) When Mr. Hardin tendered Shaibani as an expert, Mr. Rudolf said he had “a number of questions on his qualifications, Your Honor.” To proceed with a voir dire on those qualifications, the Court excused the jury, but Mr. Rudolf insisted on a so-called voir dire in front of the jury: MR. RUDOLF: I have a number of questions on his qualifications, your Honor. THE COURT: All right. Mr. Deputy, if you will take the jury to the deliberation room. MR. RUDOLF: I request permission to do it in front of the jury. THE COURT: We need to talk about that. MR. RUDOLF: Yes, sir. (The jury left the courtroom.) THE COURT: Yes, sir, Mr. Rudolf. You said you had a number of questions, but you didn’t really say what they pertained to. MR. RUDOLF: Yes, sir. They pertain to his qualifications, his academic appointments, his publications, his undergraduate and master of education. They pertain to virtually every area that he has claimed to have expertise or experience in. And it’s our position that Dr. Shaibani has testified falsely about his credentials in a number of cases under oath, and we have gathered transcripts and we’ve gathered other materials, and I think it goes to his ability to testify at all. - 26 - But certainly, the jury is entitled to hear about what he actually has done versus what he claims to have done before they hear his testimony, even if the Court overrules the objection. THE COURT: As to the Court’s determination as to whether he’s an expert or not, that’s a separate – - separate issue from what you get in front of the jury. MR. RUDOLF: Yes, sir. And what I’m representing to the Court is that I think there are serious issues with regard to this man’s truthfulness and with regard to his qualifications. THE COURT: And that may be. I’m just trying to figure out commingling the issues that we’re dealing with. His credibility as an expert, if the Court finds him to be so, is certainly something you can attack. MR. RUDOLF: Yes, sir. THE COURT: I’m trying to determine whether the Court needs enough information to make its determination with you doing whatever you have to do as far as your client is concerned. MR. RUDOLF: Yes, sir. THE COURT: With what you believe his credentials are. Are those really two separate issues? MR. RUDOLF: Well, I don’t know. I’ll be happy, in camera, with the district attorney present, to explain to the Court some of the bases of what I’m talking about, but I think it goes very directly to whether the Court ought to qualify him as an expert in the field he claims expertise in. But it seems to me that I ought not to be required to make a choice and have to cross-examine him once outside the presence of the jury, educate him about what I intend to get into, have the Court then rule, and then have to cross-examine him again on the very same topics in front of the jury after he’s already been educated about what I’m going to ask him. So –- THE COURT: The only problem with that, though, is that you do one examination, but when does Mr. Hardin know when his witness has been qualified as an expert or if he hasn’t? - 27 - MR. Rudolf: Well -- THE COURT: It would be after your examination in front of the jury. MR. Rudolf: Well, my position would be that before he gets into any opinions at all, this Court needs to determine whether or not his true qualifications are sufficient. And from the opinions or from the transcripts I’ve read, I don’t know that anyone’s really gotten into the true qualifications. So the fact that other Courts may not have been aware of information, I don’t think binds this Court in coming to an opinion, and I think that what I’m asking for might – - what I’m seeking permission to do is to conduct a voir dire limited to his qualifications. I’m not going to get into his opinions about this case at all. But a voir dire in front of the jury, limited to his qualifications, in much the same way what we did with Duane Deaver, I believe. MR. HARDIN: Your Honor, we would object to that process. If Mr. Rudolf has information along the lines of what he has described, that’s obviously very serious. It would be something that needs to be dealt with before the jury hears additional testimony from the witness. I’m aware of absolutely no entitlement that he has to have a voir dire as to his qualifications, and the Court’s consideration of those qualifications, before the jury. So we would ask that the Court conduct a voir dire, he suggested, in camera. If it’s this serious, we can do it in camera. It should be done outside the presence of the jury before the Court makes a decision about whether Dr. Shaibani can testify as an expert in his field. MR. RUDOLF: I object to that, and have no intention of going forward with voir dire if it’s outside the presence of the jury. I think its - - THE COURT: It’s not a jury determination. Mr. RUDOLF: I’m just not going to –- I’m not going to – - I’m going to do this cross-examination once on his qualifications, and if the Court is satisfied based on what it’s heard, and doesn’t wish to allow me to do a voir dire in front of the jury, then I’m not going to ask - 30 - 3 Rudolf identified the case as United States v. Angela O’Brien. (70: 12715) of a fall within the stairway without external help.” (70: 12703) Mr. Rudolf made the tactical decision to expose Shaibani’s previous as well as his current perjury in cross-examination before the jury. That cross-examination was devastating to Shaibani’s false claims of a faculty or scholarly affiliation with Temple University in particular and to his pretensions as an expert in general. Rudolf’s cross-examination began on 26 September 2003, appearing at page 12705 of transcript volume 70. He did not immediately use the letter from Temple which had been sent by facsimile to his office on 25 September 2003. Instead, Mr. Rudolf questioned Shaibani using quoted questions and answers from the transcript of a case in Washington, D.C. in 20013, during which Shaibani testified, among other things that “over 80 percent of my time relates to my responsibilities as a clinical professor,” that the “clinical professor at Temple is an unusual position in that I’ve been there for eight years now, I think and they support my research,” and that, while his position at Temple was not tenured, it was permanent. Shaibani conceded that his quoted answers were given under oath. (70: 12727-29) Later in the fall of 2001 he testified in another proceeding that Q. “Question: And is that work as a clinical professor affiliated with any educational institution? - 31 - Were you asked that in June –- I’m sorry, in October of 2001? A. I believe I was, sir, yes, sir. Q. And did you reply: “Yes. In 1992 I received an appointment from Temple University Medical School by one of their teaching hospitals, and for a period of time, I think of four years, the job title they gave me was principal research fellow. Overlapping with that I was also appointed a clinical professor. So the two are virtually synonymous. Instead of being affiliated at the moment with the Temple University Medical School, I’m affiliated with the main Temple University organization.” Is that what you testified to? A. Yes, I did, sir. [70: 12731] Then, after a short exchange, Rudolf sprang his trap: Q. Now, the truth of the matter is that at this trial in October of 2001, you were flat out told through a letter that was submitted to the Court by the dean of the department of physics at Temple that you were not affiliated with Temple, and that you were not to tell anybody anymore you were affiliated with Temple; isn’t that true? A. Not true, sir. That was an allegation made by the public defender without any supporting documentation whatsoever. (Defendant’s Exhibit 292 was marked for identification.) Q. Let me show you what I’ve marked as Defendant’s Exhibit 292 (handing). Just read that to yourself for the time being. (Pause in the proceedings.) A. All right, sir, yes. Q. You were shown that letter -- A. I don’t remember seeing this letter, sir, no. I remember it being -- - 32 - Q. You don’t remember being shown that letter -- A. I remember it being mentioned. Q. In the transcript, it was mentioned, wasn’t it? A. I believe so, yes. [70: 12737-38; emphasis added] Shaibani’s denial was followed by introduction of the text of a letter that the Chairman of the Physics Department had written to Joanne Slaight, defense counsel in the Washington, D.C., trial. The letter was dated 27 September 2001, shortly before Shaibani testified in that case. The transcript of that case shows that the letter was discussed with Shaibani at the time: Rudolf then read the letter into the record before the jury: Q. And what is says –- dated September 27, 2001, which was just a few weeks before you testified, right? A. Yes, sir. Q. “Dear Ms. Slaight: To my best recollection, Mr. Saami Shaibani was an adjunct professor of physics” –- doesn’t say “clinical,” does it? A. No, it doesn’t, sir. Q. –- “ for a period of one to two years sometime during the early 1990's. However, neither the physics department nor the dean’s office has on record any documentation confirming this appointment. An adjunct professorship is usually conferred as a matter of courtesy to a colleague who wishes to collaborate with a faculty member on a short-term basis. It provides no compensation or benefits, and does not require the fulfillment of any teaching or research duties. The recipient is typically offered parking privileges, perhaps some office space, but little else. I can assure you there is no such position in our department as a “–- quote –- “clinical associate professor of physics, nor was there during the early 1990's, when Sabiani” –- I’m sorry, “Shaibani,” parens, “perhaps, had a loose affiliation with us.” - 35 - A. Yes, sir. Q. “Any current representation that Mr. Shaibani is employed by or affiliated with Temple University is simply untrue.” Do you see that? A. I do. Q. Do you understand, sir, that when you get on a witness stand and swear to tell the truth, that it is perjury to lie, even about something like what your position is at a university? A. I understand that, sir, yes. [70: 12748-50; emphasis added] Rudolf then turned to certain of Shaibani’s supposedly peer- reviewed articles and to his experiments in the Peterson case. (70: 12751-61). Rudolf concluded by asking Shaibani about his experiments for and testimony in a case from Eagle River, Wisconsin (the Plude case). Shaibani had been asked about his methodology, so-called, in conducting experiments to determine whether the victim could have drowned herself in a toilet bowl, as her husband claimed. Mr. Rudolf used the transcript of that case in questioning Shaibani: Q. “Question: And you went there and you put heads in, put actual heads in toilets; is that right? “Answer: As part of my scientific research, I found three volunteers. That word may be used loosely here. For four hours I put their heads in the actual toilet bowl where the husband claims to have found his wife, because science dictates that you compare apples with apples. The women volunteers were the same height and the same weight as the dead woman, and I wanted to see if it was physically possible for a woman of that height and that weight, with that actual toilet, to commit suicide by drowning or to drown accidentally. And - 36 - the science says no, you can’t. “Question: And the science was putting the heads in the toilet; is that right? “Answer: No, that was part of it. I asked these women, put you head in the toilet and see if you can drown yourself, and I’ll try and fish you out before you succeed. But they never got close. They just simply couldn’t do it. The laws of physics didn’t allow them to drown themselves.” Was that your testimony? A. Yes, sir. Q. Is that what you consider to be even a part of science? A. Of course. A lot of calculations involved seeing where the forces on different parts of the body were. MR. RUDOLF: Your Honor, may I have a brief recess so that I can organize my notes? I’m getting close to the end. THE COURT: Let me talk to you all up here. (A bench conference was held off the record.) [70: 12763-64] Following that exchange the trial judge excused the jury and cautioned defense counsel: “All right, Mr. Rudolf, over lunch, control your righteous indignation somewhat.” (70: 12765) 4. The jury heard testimony from Shaibani as a direct result of Mr. Rudolf’s desire and his calculated, tactical decision to expose Shabani as a fraud before the jury instead of laying out the considerable evidence of Shaibani’s misrepresentation and past perjury before the trial judge alone. Rudolf insistently refused repeated opportunities to examine Shaibani by the usual and proper - 37 - procedure of voir dire in the jury’s absence. It is a reasonable inference from Rudolf’s decisions and action, that he hoped thereby to gain a tactical advantage, namely, to have the jury infer bad faith on the part of the prosecution in calling Shaibani as a rebuttal witness. While the series of requests and decisions made and taken by Mr. Rudolf during the Shaibani episode may not fit the technical definition of invited error, see N.C.G.S. § 15A-1443(c), the course he chose to follow in not bringing forward the information he had about Shaibani in voir dire smacks of invited error. It is certainly analogous to that concept in our law. B. The Court’s Ruling that It Was Striking Shaibaini’s Testimony, and the Court’s Curative Instruction to the Jury. When the Court reconvened, Rudolf moved to strike Shaibani’s testimony because of his perjury regarding Temple University and to instruct the jury accordingly. The District Attorney noted that Your Honor, the issues that Mr. Rudolf raised yesterday that were actually brought forward today related to information that we asked for yesterday and Mr. Rudolf chose not to provide that to us. We’ve obviously seen in great detail some of the information that he had with respect to several of these complaints or allegations. If we had had that information yesterday, I do not believe we’d be in the position that we are in today. [71: 12771] Having made that point, Mr. Hardin did not oppose the motion to strike. (Id.) The Court announced it would strike Shaibani’s testimony. In MAR paragraph 170 the defendant alleges that the “Court’s curative instruction went to Dr. Shaibani’s perjury regarding his credentials but did not address his qualifications to testify as an - 40 - trial. Beaver, 291 N.C. at 143, 229 S.E.2d at 183 (emphasis added); accord, State v. Britt, 320 N.C. 705, 712-13, 316 S.E.2d 660, 664 (1987), State v. Eason, 328 N.C. 409, 434-435, 402 S.E.2d 809, 823 (1991). Shaibani’s testimony in the Plude case does not constitute newly discovered evidence. In Plude Shaibani testified as an expert and lied about his credentials. In Plude, unlike this case, the jury never knew Shabani had perjured himself, nor was his testimony stricken by the trial judge. In this case the trial judge’s instruction to the jury to disregard all of Shaibani’s testimony could not have been more encompassing regardless of Shaibani’s testimony in Plude or any other case. Finally, considering the thorough impeachment of Shaibani on cross- examination by Mr. Rudolf, including the fact that he had lied about his credentials in 2001 in a Washington, D.C. case, the fact that he lied in still another case, namely Plude, is merely cumulative impeachment; it does not meet North Carolina’s test for newly discovered evidence. 2. In the case on which defendant relies, Douglas Plude was charged with murdering his wife Genell in October 1999; the case came on for trial in November 2002 and Plude was convicted. State v. Plude, 2007 Wisc. App. LEXIS 194 at *2, *12 (6 March 2007). The State’s theory was that “Plude murdered Genell by poisoning her - 41 - with Fioricet-codeine and then drowning her in toilet bowl water . . . . Plude contend[ed] that Genell committed suicide by taking an overdose of drugs, which served as a catalyst for a fatal occurrence of pulmonary edema,” i.e., she drowned in fluid created by her body. Plude, 310 Wis.2d at 32-33, 750 N.W.2d at 44. Shaibani testified as an expert that drowning in the toilet bowl “would have required 60 pounds of pressure to the back of her [the victim’s] head to get her face in the toilet bowl water and keep it there.” Id. at 40, 750 N.W.2d at 48. Defendant Peterson’s case came on for trial in May 2003. When Shaibani was called as a witness, defense counsel Rudolf knew about Shaibani’s testimony in the Plude case, and, as discussed above, he cross-examined Shaibani about his testimony in that case and posed questions to Shaibani using the trial transcript of the Plude case. At the time of that cross-examination Rudolf knew that Shaibani had lied about his connection with Temple University in the Washington, D.C., case that was tried in October 2001. He also knew that Shaibani had perjured himself in the same way in defendant Peterson’s case. As discussed above, Rudolf’s cross-examination established the perjury Shaibani committed in both cases. Unlike the situation in Plude’s case, Shaibani’s perjury was revealed to the Peterson jury and his entire testimony was ordered stricken. Shabani’s perjury was, and is, not newly discovered evidence in defendant’s Peterson case because it was revealed at trial. - 42 - 4 Wisconsin, like North Carolina has a multi-part test for newly discovered evidence. In Wisconsin the test is as follows: Shabani’s perjury was ultimately found to be grounds for a new trial in Plude’s case because it was only discovered after Plude’s conviction and appeals were final. In fact, Plude stated in his post-conviction proceedings “that he discovered Shaibani misrepresented himself when Shaibani attempted to testify untruthfully before a North Carolina court.” Id. at 47n.10, 750 N.W.2d at 750 N.W.2d at 52n.10 (emphasis added). In deciding Plude’s motion for post-conviction relief the Wisconsin Supreme Court repeatedly made the point that the jury which convicted Plude did not know of Shaibani’s perjury. The Court noted that Shaibani “had represented himself as a clinical associate professor at Temple University and as a specialist in ‘injury mechanism analysis” . . . [and] said that as part of his duties at Temple University he taught physicians and surgeons about injury.” Id. at 38, 750 N.W.2d at 47. The Court noted pointedly that in post-conviction proceedings the “State admit[ed] that if Shaibani's false testimony about his fictitious professorship at Temple University had been revealed during Plude's trial, the revelation would have unquestionably diminished Shaibani's credibility in the eyes of the jury.” Id. at 48, 750 N.W.2d at 53. The Court “conclude[d],” finally, “that the discovery that Shaibani testified falsely about his credentials is newly-discovered evidence4 that gives rise to a reasonable probability that, had the - 45 - Amendment right to confront Shaibani as a witness. In MAR paragraph 192 defendant claims that Heggins told Guerette that he (Heggins) had once fallen down stairs. Defendant alleges that, “despite being asked a direct question, this same juror [Heggins] did not reveal during voir dire that he once fallen down 14 metal steps and landed on his head, with very little injury.” (MAR paragraph 192) That claim, like the one in MAR paragraph 190 is factually inaccurate; it, too, is contradicted by the transcript. Defendant through his current counsel gives no citation to where in the transcript Heggins was asked about falling down stairs. David Heggins was the first alternate juror selected. Mr. Hardin’s examination of him begins on page 3893 of Volume 19 of the transcript. Mr. Rudolf’s examination of Heggins on voir dire appears in Volume 19, pages 3924 through 3959. Although Rudolf posed numerous questions to Heggins about the State’s burden of proof, circumstantial evidence, expert opinion testimony, the presence or absence of motive, willingness to keep an open mind, et cetera, Heggins was never asked whether he had fallen down steps, metal or otherwise. (See State’s Exhibit 2 [transcript of Mr. Rudolf’s voir dire examination of Heggins in jury selection, 19: 3924-3959]) 2. The State notes next that defendant’s claim regarding alleged misconduct by juror Heggins should be denied because he was aware of the claim in December 2003 and has unreasonably delayed in - 46 - putting it forward. At this late date the State is prejudiced in its ability to refute the hearsay claim about juror’s Heggins alleged misconduct because he now suffers from dementia. As discussed below, defendant could have easily incorporated this claim in his direct appeal by motion for appropriate relief in the appellate division, but he did not do so. His record on appeal was not filed in the Court of Appeals until July 2005; the case was not decided there until September 2006. The case was then appealed to our Supreme Court, where it was heard in oral argument in September 2007, and not decided there until November 2007. As the Court of Appeals observed in State v. Riley, 137 N.C. App. 403, 528 S.E.2d 590, appeal dismissed, disc. rev. and cert. denied, 352 N.C. 596, 545 S.E.2d 217 (2000), cert. denied, 531 U.S. 1082, 148 L. Ed. 2d 681 (2001), regarding defendant’s delay in raising a constitutional claim: “his case has been tried, appealed, remanded, and retried. At no point in any of these proceedings” did defendant bring forward his claim. Id. at 407, 528 S.E.2d at 593. The State notes next that the material defendant submits in support of his claim of juror misconduct fails to comply with the requirements for “affidavit or other documentary evidence if based upon the existence or occurrence of facts which are not ascertainable from the records” that are mandated by N.C.G.S. § 15A-1420(b)(1). While certain affidavits, e.g., one from a juror impeaching the jury’s verdict, are inadmissible, an affidavit can in some circumstance provide a forecast of evidence that would be - 47 - admissible. The State notes next that the material defendant submits is hearsay (technically, in fact, double hearsay) which fails to meet the standard of a showing of admissible evidence required for relief pursuant to a motion for appropriate relief. The hearsay statements of third parties, asserted by a post-conviction counsel, or any other person, are not legally sufficient under current N.C.G.S. § 15A-1420(c)(6) and our case law. See, State v. Adcock, 310 N.C. 1, 310 S.E.2d 587 (1984). Furthermore, the letter of Cornelius Tucker on which defendant relies is not only double hearsay but also inherently unreliable. Apart from his very lengthy criminal record, including crimes involving fraud and deceit, Mr. Tucker was adjudicated legally insane when found not guilty by reason of insanity in 2005 and was confined for some months in a federal psychiatric hospital following his release from the North Carolina Department of Correction. In addition, he has been sanctioned repeatedly by our Court of Appeals for filing frivolous pleadings. Finally, and most crucially, even if defendant proferred in support of this claim a proper affidavit from former juror Heggins himself, stating under oath that he considered Shaibani’s testimony despite the trial judge’s instructions to disregard, such an affidavit would not present a forecast of admissible evidence because testimony by a juror or jurors regarding his or their thought processes in reaching a verdict is prohibited in both state - 50 - 7 The other exception is for “bribery, intimidation, or attempted bribery or intimidation of a juror,” and there is certainly no allegation of bribery or intimidation here. witnesses against him.”7 N.C.G.S. § 15A-1240(c)(1)(2007)(emphasis added); see also, Price, supra. The exception could not apply in this case because Shaibani was most definitely confronted and cross-examined by Mr. Rudolf. The public policy underlying our law against allowing jurors to impeach their verdict after the fact has been enunciated many times. As the court noted in Government of the Virgin Islands v. Nicholas, 759 F.2d 1073 (3rd Cir. 1985), Some of the most thoughtful statements about the potential dire consequences of such impeachment efforts have been written by federal trial judges. . . . In exploring the implications of such post-verdict inquires, Judge Knox wrote: If jurors were permitted to impeach their own verdict by statements such as these no criminal case would ever be ended, and the inducement would be great for defendants to engage in private interviews of jurors in an endeavor to get them to say that they did not understand the court's instructions which were clear and thus upset every verdict which was rendered. As a matter of fact, in the instant case the record indicates that the defendant personally went to interview two jurors and thereafter his counsel and a court reporter put these jurors, Zacur and Wolf, under oath and asked them questions which were later filed in court as exhibits. Such harassment of the jurors after their verdict should not be tolerated. Such procedures can very easily degenerate into a situation with all kinds of subtle pressures being exerted. Id. at 1077-78 (quoting United States v. Homer, 411 F. Supp. 972 - 51 - 8 This Court may consider by analogy N.C.G.S. § 15A- 1419(a)(3), which provides that (a) The following are grounds for the denial of a motion for appropriate relief, including motions filed in capital cases . . . (3) Upon a previous appeal the (W.D. Pa. 1976), aff'd 545 F.2d 864 (3d Cir. 1976), cert. denied, 431 U.S. 954, 53 L. Ed. 2d 270(1977); accord, McDonald v. Pless, 238 U.S. 264, 267-68, 59 L. Ed. 1300, 1302 (1915) (stating same public policy and rationale). Detailed Response A. Defendant Has Unreasonably Delayed in Bringing His Claim of Alleged Juror Misconduct and the State Has Been Prejudiced by That Delay. 1. The defendant was convicted and judgment was entered against him on 10 October 2003. According to defendant’s exhibit 38, his investigator Ronald Guerette, by telephone, questioned juror Heggins just over two months later on 16 December 2003; on that date Heggins allegedly told Guerette, regarding the trial court’s instruction to disregard Shaibani’s testimony, “Yeah they you that, but show me a man that might say that, you don’t erase everything, you take it into consideration. I did.” (Defendant’s MAR Exhibit 38) Now, some five years after he first learned of what he alleges to be misconduct by juror Heggins and after appellate proceedings in the Court of Appeals, our Supreme Court, and the United States Supreme Court have concluded, he chooses to bring this claim.8 - 52 - defendant was in a position to adequately raise the ground underlying the present motion but did not do so. Furthermore, subsection (c) of the statute provides that “A trial attorney's ignorance of a claim, inadvertence, or tactical decision to withhold a claim may not constitute good cause . . . . The record on appeal in defendant’s case was filed in the Court of Appeals on 27 July 2005 and docketed there on 3 August 2005. (See State’s Exhibit 3 [Court of Appeals docket sheet for State v. Peterson].) From the time the trial court was divested of jurisdiction by defendant’s appeal through its pendency in the Court of Appeals and the North Carolina Supreme Court defendant was in position to include his claim about juror Heggins in his direct appeal by motion for appropriate relief in the appellate division but he did not do so. Motions for appropriate relief in the appellate division made be decided there or remanded to the trial court for further proceedings after which the appellate court will decide the correctness of the trial court’s ruling. N.C.G.S. § 15A-1418 provides as follows: (a) When a case is in the appellate division for review, a motion for appropriate relief based upon grounds set out in G.S. 15A-1415 must be made in the appellate division. For the purpose of this section a case is in the appellate division when the jurisdiction of the trial court has been divested as provided in G.S. 15A-1448, or when a petition for a writ of certiorari has been granted. When a petition for a writ of certiorari has been filed but not granted, a copy or written statement of any motion made in the trial court, and of any disposition of the motion, must be filed in the appellate division. (b) When a motion for appropriate relief is made in the appellate division, the appellate court must decide - 55 - (1) the withdrawal of defendant's plea of not guilty to the murder charges by reason of insanity, (2) the submission of a stipulation by defendant admitting commission of the physical acts alleged in the bills of indictment and basing defense on absence of mental elements of the crime, (3) the tender of guilty pleas to the sex offenses, (4) the circumstances surrounding these submissions to the trial court, and (5) the defendant's understanding and voluntary tender thereof. Id. at 713, 517 S.E.2d at 629-30. Following the evidentiary hearing, the Court reviewed the trial court’s findings on the MAR claim and decided it and all other claims raised in defendant’s appeal. Id. at 718-19, 517 S.E.2d at 632-33; see also, State v. Bishop, 346 N.C. 365, 402-04, 488 S.E.2d 769, 789-90 (1997)(during pendency of appeal, defendant filed an MAR alleging newly discovered evidence; the Court remanded the claim to the trial court for an evidentiary hearing and then reviewed the trial court’s ruling and decided defendant’s MAR claim along with all other issues raised in the appeal). 2. Because of the passage of time and the illness that now afflicts former juror David Heggins the State’s ability to respond to defendant’s hearsay allegation has been severely prejudiced. As discussed below in section C, Mr. Heggins, who is now more than seventy-six years old, suffers from dementia. Federal law on jurors’ impeachment of their verdicts notes the dubious character of such claims, especially when they are not timely raised. As the Supreme Court has held, “allegations of juror misconduct, incompetency, or inattentiveness, raised for the - 56 - first time days, weeks, or months after the verdict, seriously disrupt the finality of the process.” Tanner v. United States, 483 U.S. 107, 120, 97 L. Ed. 2d 90, 106 (1987), superseded by statute on other grounds as stated in, United States v. Little, 889 F.2d 1367(5th Cir. 1989). Tanner cited, inter alia, the case of Government of the Virgin Islands v. Nicholas, 759 F.2d 1073 (3rd Cir. 1985). In Nicholas the defendant raised his post-conviction claim regarding a juror one year and eight months after verdict was rendered. In this case, the defendant is bringing forward his allegation more than five years after verdict was rendered. B. The Material Offered by Defendant in Support of This Claim Fails to Comply with the Requirements of § 15A-1420. The statement purportedly made by former juror Heggins to Ron Guerette (MAR Exhibit 38) fails to comply with the requirements of N.C.G.S. § 15A-1420 for obtaining an evidentiary hearing on a post- conviction claim. In addition, as discussed below, that purported statement is inadmissible as evidence under N.C.G.S. § 15A-1240, § 8C-1, Rule 606(b), § 8C-1, Rule 802, and case law. The same is true of the statement purportedly made and purportedly “overheard” by inmate Cornelius Tucker, a.k.a., Cornelius Tucker, Jr. (MAR Exhibit 39). Section 15A-1420(b)(1) requires that [a] motion for appropriate relief made after the entry of judgment must be supported by affidavit or other documentary evidence if based upon the existence or occurrence of facts which are not ascertainable from the records and any transcript of the case or which are not within the knowledge of the judge who hears the motion. - 57 - [Emphasis added.] Unsworn, hearsay statements of third parties are not legally sufficient under § 15A-1420(b)(1) as “affidavits” supporting relief requested by an MAR. “An affidavit is [a] written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before an officer having authority to administer such oath.” Ogburn v. Sterchi Bros. Stores, Inc., 218 N.C. 507, 508, 11 S.E.2d 460, 461 (1940)(internal quotation marks and citation omitted). For a document to qualify as an affidavit based on an oath before a notary, the notary must fulfill the requirements “of the notarial act, including verifying the affiant’s identity and ensuring that the affiant swears to or affirms the truthfulness of the statements in the affidavit. As with all notarial acts, the notary must properly complete the certificate.” Charles Szypszak, Notary Public Guidebook for North Carolina, 90 (10th ed. 2006). Defendant describes his exhibit 38 as a “notarized statement the juror stated [sic] about Dr. Shaibani.” (MAR at 50) The paperwriting he has attached does not support that characterization. It is captioned “Investigative Report 3,” with subheadings “Synopsis” and “Investigative Findings.” It is not signed by juror David Heggins, but by “Ronald T. Guerrette.” N.C.G.S. § 10B-20(b) mandates that A notarial act shall be attested by all of the following: (1) The signature of the notary, exactly as shown on the notary's commission. - 60 - filing a motion for appropriate relief clearly requires supporting affidavits to accompany the motion in a case such as this. Subsection (c)(6) provides that a ‘defendant who seeks relief by motion for appropriate relief must show the existence of the asserted ground for relief. Relief must be denied unless prejudice appears, in accordance with G.S. 15A-1443.’ Subsection (b)(1), entitled ‘Supporting Affidavits’ provides as follows: A motion for appropriate relief made after the entry of judgment must be supported by affidavit or other documentary evidence if based upon the existence or occurrence of facts which are not ascertainable from the records . . . . Id. at 668-69, 325 S.E.2d at 42-43. In Payne the defendant’s MAR filed in the Supreme Court alleged that a witness in the defendant’s trial, Zachary Beard was hypnotized prior to testifying. The Court summarily denied the MAR “because defendant submitted no supporting affidavits or other documentary evidence tending to show that Zachary Beard did in fact undergo hypnosis prior to defendant's trial and this alleged fact is not ascertainable from the record or transcripts . . . .” Id. at 669, 325 S.E.2d at 43. In the capital case of State v. Elliot, 360 N.C. 400, 628 S.E.2d 735 (2006), the trial court denied without an evidentiary hearing the defendant’s MAR which alleged juror misconduct. The defendant contended that two jurors met and prayed outside the jury room and that this constituted impermissible deliberation in the absence of the other jurors. Our Supreme Court “conclude[d] evidentiary support submitted by defendant was insufficient to ‘show the existence of the asserted ground for relief’ or to show - 61 - the required prejudice to defendant, we hold the trial court did not err in denying defendant's motion.” Id. at 417, 628 S.E.2d at 747 (citing N.C.G.S. § 15A-1420(c)(6)). The Court was dubious about the merit of defendant’s argument, but noted as a matter of procedure that defendant had not supported his claim, such as it was, with affidavits, and the Court held that the trial court did not err in denying defendant’s claim without an evidentiary hearing because “defendant failed to make an adequate threshold showing of juror misconduct.” Id. at 419-20, 628 S.E.2d at 748. Likewise in the second degree murder case of State v. Rhue, 150 N.C. 280, 563 S.E.2d 72 (2002), appeal dismissed and disc. rev. denied, 356 N.C. 689, 578 S.E.2d 589 (2003), the Court of Appeals, affirmed the trial court’s denial without an evidentiary hearing of defendant’s MAR claim. The Court noted that the rules for filing a motion for appropriate relief clearly require supporting affidavits to accompany the motion. The [North Carolina Supreme] Court [has] observed that aside from subsection [15A-1420] (c)(6), N.C. G. S. § 15A-1420(b)(1) provides that motions for appropriate relief made after the entry of judgment must be supported by affidavit or other documentary evidence if based upon the existence or occurrence of facts which are not ascertainable from the records . . . . Id. at 290, 563 S.E.2d at 79; accord, State v. Aiken, 73 N.C. App. 487, 501, 326 S.E.2d 919, 927 (trial court properly denied, without a hearing, the defendant's MAR based on ineffective assistance of counsel where the defendant failed to produce any supporting affidavits or other evidence beyond bare assertions), appeal dismissed and disc. rev. denied, 313 N.C. 604, 332 S.E.2d - 62 - 180 (1985). The material defendant offers regarding alleged juror misconduct does not comply with the requirements of N.C.G.S § 15A- 1420 and case law; those claims do not warrant an evidentiary hearing and should be denied. C. The Material Attached by Defendant in Support of This Claim Presents No Forecast of Admissible Evidence; It Consists of Hearsay. In Addition, Cornelius Tucker’s History of Criminal Deceit, of Being Sanctioned for Frivolous Court Filings, and of Adjudicated Insanity Deprives His Allegations of Any Credibility. 1. “Whenever the assertion of any person, other than that of the witness himself in his present testimony, is offered to prove the truth of the matter asserted, the evidence so offered is hearsay." State v. Smith, 312 N.C. 361, 366, 323 S.E.2d 316, 318 (1984) Accordingly, “evidence presented in the form of an affidavit is hearsay.” Id. The primary reason for excluding hearsay is that it presents the party against whom it is offered with no opportunity to test the matter asserted by cross-examination. If defendant had offered the affidavit of former juror Heggins himself, that submission would be hearsay. But defendant has not even done that. What he presents is a paper-writing containing what Guerette says that Mr. Heggins said; in short, defendant is proposing to carry his burden on this claim by submitting double hearsay. See, e.g., State v. Cunningham, 344 N.C. 341, 358, 474 S.E.2d 772, 780 (1996)(defendant’s proffer of testimony from an investigator as to - 65 - (a) General rule. -- For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a felony, or of a Class A1, Class 1, or Class 2 misdemeanor, shall be admitted . . . . (b) Time limit. -- Evidence of a conviction under this rule is not admissible if a period of more than 10 years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence. N.C.G.S. § 8C-1, Rule 609(a) and (b). Most recently, as discussed below, Cornelius Tucker, alias Goothamer Tucker, alias Neil Tucker, was located at the Forsyth County Detention Center, where he was interviewed by S.B.I. Agents K. Perry and D. W. Mayes on 12 January 2009. Before his current incarceration, he was in the custody of the North Carolina Department of Correction until his release on 7 July 2008. The public records of the North Carolina Department of Correction on Mr. Tucker run for eleven pages. The crimes for which he was serving sentences for state offenses, include at least the following: possession of a schedule II controlled substance and habitual felon; shoplifting and possession of drug paraphernalia; assault with a deadly weapon inflicting serious injury; uttering forged paper; worthless check (numerous counts); assault on a female; fraud in connection with a rental vehicle; larceny; and prison escape. (See Exhibit 5.) - 66 - 10 In addition to the numerous Fourth Circuit Court of Appeals cases involving Tucker, he has also in federal district court in the District of Columbia sued “Captain Branker (a correctional officer at the prison in which Tucker was incarcerated) and the President and Vice President of the United States, alleging that the defendants had violated his constitutional rights by, among other things, (1) giving him the drug Thorazine four times a day; (2) refusing to mail "10 suits" to various courts; and (3) housing him with tuberculosis patients who refused to take their medicine. . . . The district court granted Tucker's application to proceed IFP but . . . sua sponte dismissed Tucker's complaint because it was ‘without basis in law or in fact.’” Tucker v. Branker, et al., 142 F.3d 1294 (D.C. Cir. 1998); see also, Tucker v. Beck, 2001 U.S. App. LEXIS 6745 (5 March 2001)(“This action is frivolous and fails to state any claim which would warrant the extraordinary remedy of mandamus”); Tucker v. Clinton, U.S. President, et. al., 1996 U.S. App. LEXIS 34438 (D.C. Cir. 1996)(summarily affirming the district court’s order and noting that Tucker “has not stated a claim against the President of the United States”). Tucker has been repeatedly sanctioned for filing frivolous pleadings. The Court of Appeals has entered at least four Orders finding Tucker’s pleadings there to be frivolous under North Carolina law and ordering that he not submit “any additional frivolous documents to this Court for review.” These orders dated 18 April 2008, 14 September 2005, 28 October 2004, and 18 November 2002 are attached as State’s Exhibit 6. b. Tucker and Federal Judicial Proceedings Tucker’s involvement with the federal judicial system is likewise extensive. 10 By an indictment entered 9 July 2003, Tucker was charged with twelve counts of mailing threatening communications in violation of 18 U.S.C. § 876. “Dr. Kendall Carnes Warden, a psychiatrist in Durham, was appointed to evaluate the defendant's competency, both - 67 - 11 The United States Code provides for the psychiatric hospitalization of defendants found not guilty by reason of insanity and mandates that such a defendant “shall be committed to a suitable facility until such time as he is eligible for release pursuant to subsection (e).” 18 U.S.C. 4243(a)(2008). to stand trial and at the time of the offenses charged.” United States v. Tucker, 2005 U.S. Dist. 42270 at *1 (E.D.N.C. 2005). The Court found that Dr. Warden expressed her professional opinion . . . that the defendant is not now competent to stand trial, nor was he competent at the time of the offenses charged. The defendant's counsel, James B. Craven III of Durham, and Government counsel, Felice McConnell Corpening, Assistant United States Attorney of Raleigh, are in agreement with Dr. Warden, as is the Court. Accordingly, the defendant having on September 7, 2004 filed notice of his intent to assert an insanity defense, the Court now, pursuant to 18 U.S.C. 4242(b), finds the defendant Cornelius Tucker, Jr. not guilty only by reason of insanity. Id. at *1-2 (emphasis added) The Court noted that Tucker’s projected release date from the North Carolina Department of Correction was 5 July 2008 and ordered that “[r]egardless of when Tucker is released from state custody, however, he shall be committed to a suitable Bureau of Prisons medical facility pursuant to 18 U.S.C. 4243(a) until such time as he is eligible for release pursuant to 18 U.S.C. 4243(e).”11 The United States Court of Appeals for the Fourth Circuit affirmed the federal district court’s order. United States v. Tucker, 153 Fed. Appx. 173 (4th Cir. 2005), cert. denied, 546 U.S. 1202, 164 L. Ed. 2d 104(2006). The Court also denied all of Tucker's pending [pro se] motions, including his motion to relieve and substitute counsel, motion for - 70 - by the court, and jurors have been discharged, jurors will not be allowed to attack or overthrow their verdict, nor will evidence from them be received for such purpose.” Id. at 100, 257 S.E.2d at 560. The Court “recognize[d] that a defendant's eligibility for parole is not a proper matter for consideration by the jury.” Id. at 101, 257 S.E.2d at 561. Nevertheless, the Court rejected defendant’s contention that N.C.G.S. § 15A-1240(c)(1) brought defendant’s allegation within the exception to the rule that testimony of jurors cannot be received to impeach their verdict. That subsection of the statute deals with “[m]atters not in evidence which came to the attention of one or more jurors under circumstances which would violate the defendant's constitutional right to confront the witnesses against him;” a “juror’s knowledge that there is a possibility of parole for a defendant,” the Court held, “would not ‘violate the defendant’s constitutional right to confront the witnesses against him.’” Id. That holding is applicable here. The witness about whose testimony defendant Peterson complains was cross-examined. In McCain v. Otis Elevator Co., 106 N.C. App. 415 S.E.2d 78 (1992), after the jury had returned a verdict and been discharged, the plaintiff moved for a new trial based on affidavits from two jurors to the effect that the jury “‘disregarded the evidence and the Court's instructions . . . .’” Id. at 50, 415 S.E.2d at 81 (ellipsis in original). Citing Rule 606(b), the Court of Appeals affirmed the trial court’s denial of the plaintiff’s motion. - 71 - “After a jury has rendered a verdict and has been discharged by the court, ‘jurors will not be allowed to attack or overthrow [the verdict], nor will evidence from them be received for such purpose.’” Id. (citing Craig v. Calloway, 68 N.C. App. 143, 150, 314 S.E.2d 823, 827 (1984)). The policy, statutory, and case law against allowing jurors to impeach their verdicts are not unique to North Carolina. They are deeply entrenched in other state jurisdictions and in federal law. In the murder case of Echols v. State, 360 Ark. 332, 201 S.W.3d 890 (2005), for example, the defendant sought post-conviction relief thorough the mechanism of Arkansas’ corum nobis proceeding. The Court noted that the defendant had hardly shown due diligence in waiting ten years to bring forward a claim that was known to him at or shortly after the time of trial. The Court, however, reached Echols’ claim that “the jury received and considered extraneous information - specifically, the confession of [one] Jessie Misskelley - during deliberations at his trial . . . .” Id. at 335- 36, 201 S.W.3d at 892. The Arkansas Supreme Court resoundingly rejected that claim, holding that We have unequivocally stated that any effort by a lawyer to gather information in violation of Rule 606(b) to impeach a jury's verdict is improper. Although Echols argues that he interviewed the jurors in order to determine whether any external influence or information played a role in the jury's deliberations, what he is essentially asking this court to do is to delve into the jury's deliberations in order to determine whether any of them disregarded the trial court's instructions - specifically, the court's instruction to not consider that a witness had mentioned Misskelley's statement. - 72 - Id. at 339, 201 S.W.3d at 895 (citation omitted)(emphasis added). In State v. Walker, 783 S.W.2d 145 (Mo. App. 1990), co-counsel for defendant moved for a new trial and filed an affidavit stating that he had spoken to a juror who said that, contrary to the court’s instructions, she had found the defendant guilty because he did not take the witness stand and deny his guilt. Id. at 149. The Court affirmed the trial court’s denial of defendant’s motion, adhering to the “general rule long recognized in this jurisdiction that a jury will not be heard to impeach its own verdict” and its specific precedent that a juror will not be heard to impeach his verdict by testimony that he drew adverse inferences from defendant’s failure to testify. Id., accord, Sims v. State, 444 So.2d 922, 925 (Fla. 1983); United States v. Voigt, 877 F.2d 1465 (10th Cir. 1989)(holding that federal rule of evidence 606(b) precludes examination of jury as to whether, in disregard of the court’s instructions, “the ‘decisive basis’ of the verdict against the defendant was her failure of defendant to take the witness stand and testify”); see also, State v. McDaniel, 392 S.W.2d 310, 318 (Mo. 1965)(juror visited the scene of the crime during deliberations contrary to the court's instructions; “affidavits or testimony of third persons as to statements of jurors tending to impeach their verdict are inadmissible, not only as hearsay but also for the same reason which excludes the affidavits or testimony of the jurors themselves”). Almost one-hundred years ago the United States Supreme Court - 75 - jurors who returned the verdict was partially deaf and unable to hear certain evidence at his trial. Nicholas, 759 F.2d at 1074-75. The Court of Appeals for the Third Circuit “affirm[ed] the district court’s ruling that the appellant failed to prove that he had a right to an evidentiary hearing on the issue” and held that “even if the juror was unable to hear portions of the evidence, Nicholas would not be entitled to post-conviction relief as a matter of law because under Fed. R. Evid. 606(b), the juror would be incompetent to so testify.” Id. Following the verdict in United States v. Sokoloff (cited above), defendants moved the trial court to interview jurors alleging that misconduct by a juror or jurors had tainted the verdict. Specifically, defendant alleged that an alternate juror had indicated among other things that the jurors, disregarding the court’s instructions, had “considered the case before they were instructed to begin their deliberations.” 696 F. Supp. at 1455. The court denied the motion, holding, as discussed above, that “[r]esolving the question of whether jurors improperly disregarded the Court's instructions inevitably entails an anatomization of the thought behind the verdict, and is therefore an impermissible avenue of inquiry because such evidence cannot be used to impeach the verdict.” Id. at 1457 (citations omitted). As the Court in Government of Virgin Islands v. Gereau said regarding the guidelines of the Third Circuit on attempts to impeach a jury’s verdict - 76 - [a]ny attempt to impeach a jury verdict initially encounters two evidentiary obstacles: (1) producing evidence competent to attack the verdict, and (2) establishing the existence of grounds recognized as adequate to overturn the verdict. And even where both obstacles are cleared, there must be a finding that the party seeking to impeach the verdict has suffered prejudice from misconduct of the jury. 523 F.2d 140, 148 (3d Cir. 1975), cert. denied, 424 U.S. 917, 47 L. Ed. 2d 323 (1976). In sum, in addition to the defendant’s unreasonable delay and the prejudice to the State caused by the intervening mental condition of Mr. Heggins in the lapse of time before defendant brought this claim; the lack of proper support for it, and the hearsay character of the support, such as it is, that defendant does offer; defendant Peterson has provided no forecast of evidence admissible under our statutory and case law to impeach the verdict in his case. His request for relief from his conviction of first degree murder on the basis of his “ground six” should be denied without further proceedings. DEFENDANT’S GROUND SEVEN: ALLEGATION OF INEFFECTIVE ASSISTANCE OF COUNSEL [MAR paragraphs 197-199] Summary Response Defendant through his current counsel alleges that his lead trial counsel Mr. Rudolf rendered ineffective assistance of counsel (“IAC”). Defendant contends that Rudolf was ineffective because (1) his opening statement “led to the admission of evidence of Defendant’s sexual activities;” (2) he should have moved for a - 77 - 15 Presumably defendant is referring to one Sonya Pfeiffer, who was at the time of trial a television reporter. mistrial when Shaibani’s testimony regarding his credentials was demonstrated to be perjurious; and (3) Rudolf should also have moved for a mistrial when a juror informed the court that she had received a letter “from a report15 [sic] at Channel 11" television. (MAR at 53) The defendant’s solicitation of sex from and attempts to arrange a rendezvous for that purpose with homosexual prostitute Brent Wolgamott was relevant to the defendant’s motive for murder. That evidence would have been admitted to show motive regardless of what Rudolf said in his opening statement about the loving relationship between the defendant and his wife. The extreme remedy of mistrial was not warranted for Shaibani’s perjury about his credentials, especially in view of the trial court’s strong curative instruction to the jury to disregard Shaibani’s testimony in its entirety. Mistrial was not warranted by the premature invitation from a television reporter to the jurors to come to a dinner to discuss the trial after they had rendered a verdict. Regarding the decisions Rudolf made on each of these matters, the defendant has failed to satisfy either prong of the test for ineffective assistance of counsel. Defendant has also failed to meet the requirements of N.C.G.S. § 15A-1420 and our case law. Why and how a lawyer makes tactical decisions, for example, how to structure an opening statement or - 80 - it is shown that no reasonable lawyer, in the circumstances, would have done so.” Rogers v. Zant, 13 F.3d 384, 386 (11th Cir.), cert. denied, 513 U.S. 899, 130 L. Ed. 2d 175 (1994). This defendant, like any defendant claiming ineffective assistance, "is entitled to a new trial only if the error was so fundamental that, absent the error, the jury probably would have reached a different result." State v. Augustine, 359 N.C. 709, 717, 616 S.E.2d 515, 523 (2005)(emphasis added), cert. denied, 548 U. S. 925, 165 L. Ed. 2d 988 (2006). B. Defendant’s First IAC Claim Regarding the first IAC claim, defendant asserts that Rudolf’s opening statement “was conduct which failed to meet expected standards of professional conduct . . . .” But defendant completely fails to show that the opening statement was unreasonable, and that it was deficient performance, and that the jury probably would have reached a different verdict but for Rudolf’s opening statement. “Evidence of motive is always admissible where the doing of the act is in dispute.” 1 Kenneth S. Broun, Brandis and Broun on North Carolina Evidence § 110 at 338 (6th ed. 2004). There are very many cases showing the relevance of extramarital affairs to motive for murder. See, e.g., State v. Shank, 327 N.C. 405, 411, 394 S.E.2d 811, 815 (1990)(proper to argue that common sense and life experience support “the likelihood of, and motive for, violence and even killing” when extramarital affair is involved); - 81 - accord, State v. Gladden, 315 N.C. 398, 340 S.E.2d 673, cert. denied, 479 U.S. 871, 93 L. Ed. 2d 166 (1986). Rudolf was aware that the State had evidence that defendant had solicited and engaged in extramarital homosexual affairs, and on 14 February 2003 (four and one-half months before the presentation of evidence began) he moved in limine to prevent the State from introducing evidence that his client “had engaged in homosexual correspondence or relationships.” (Rp 69) That motion was partially successful in that Judge Hudson found evidence of defendant’s homosexual affairs before he married Kathleen irrelevant. However, defendant’s solicitation by phone and e-mail of sex with male prostitute Brent Wolgamott in the fall of 2001 was another matter. (See 39: 7749 and Rpp 89-90 [“Order Partially Denying Defendant’s Motion in Limine”]). Aware of the looming evidence about motive, Rudolf took steps to defuse that evidence through the jury questionnaire, voir dire examination of prospective jurors, and his opening statement. The first two steps were designed to protect his client from jurors who would be unduly disturbed about homosexuality. The questionnaire asked: “Do you have any religious, moral or personal feelings, convictions or beliefs about . . . Adult use of sexually explicit materials (pornography). Adults who engage in homosexual activities? If yes . . . please describe.” (Jury Questionnaire, no. 92; see State’s Exhibit 8.) In jury voir dire Rudolf posed questions like this: Is “it fair to say that your view of - 82 - [homosexuality] is, it’s just sort of a lifestyle choice people can make or do you have some other views about that?” (9:1776) Rudolf’s lengthy opening statement was designed to impress upon the jury that the defendant and Kathleen had a loving marriage and, therefore, he would not have been influenced to murder her even if he had been sexually unfaithful. Rudolf repeatedly told the jurors that, while motive suggested by the State militated in favor of guilt, the lack of motive militated in favor of innocence: In any event, the truth of the matter is that the absence of a convincing motive, especially in a circumstantial case, has to be considered on the side of innocence. I read you the instruction in voir dire. (Referring to overhead screen) There it is. The bottom line. ‘The absence of motive is equally a circumstance to be considered on the side of innocence.’ [Emphasis added] [24: 4741-42] These actions by counsel, including his opening statement, were reasonable and did not constitute deficient performance. In the end, the evidence of defendant’s involvement with Wolgamott was admitted because it was relevant to motive as the trial judge ruled: “The evidence is relevant to this matter in two ways: First, it relates to a possible motive, which is a circumstantial piece of evidence that the jury can consider. Second, it goes to rebut the assertions in Defendant’s opening statement regarding the idylillic relationship between the Defendant and the deceased in this case.” (Rp 90, emphasis added; see State’s Exhibit 9) The relevance and admissibility of the evidence of motive at issue would not have changed regardless of what Rudolf said or did - 85 - for a voir dire examination of Shaibani “outside the presence of the jury.” (68: 12555) Rudolf was determined to expose and embarrass Shaibani in front of the jury rather than simply having him disqualified as an expert and never allowed to testify. Instead, Rudolf did not disclose the information he had about Shaibani either to the District Attorney or the Court, but waited until Shaibani had testified and then disgraced him before the jury. For that purpose, as noted above, he withdrew his request for a voir dire because the trial judge correctly ruled that voir dire should be in the jury’s absence. Rudolf’s ploy was considered beforehand and was effective. Having exposed Shaibani, Rudolf then received exactly what he asked for, namely, an instruction to the jury to disregard Shaibani’s testimony in its entirety. Rudolf’s decision not to move for mistrial was not deficient performance and did not prejudice his client. Mistrial is an extreme remedy, as our appellate courts have repeatedly held, and as our Supreme Court very recently reiterated. "'Mistrial is a drastic remedy, warranted only for such serious improprieties as would make it impossible to attain a fair and impartial verdict.'" State v. Taylor, 362 N.C. 514, 538, 669 S.E.2d 239, 260 (2008)(quoting State v. Smith, 320 N.C. 404, 418, 358 S.E.2d 329, 337 (1987) (quoting State v. Stocks, 319 N.C. 437, 441, 355 S.E.2d 492, 494 (1987)). Moreover, our case law holds that mistrial is not warranted when an objection is allowed and a curative instruction given to remove any error. A trial court is required - 86 - to allow a defendant's motion for mistrial only “if there occurs during the trial . . . conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant's case.” N.C.G.S. § 15A-1061 (2007). A motion for mistrial and the determination of whether defendant's case has been irreparably and substantially prejudiced is consigned to the trial court's sound discretion. State v. Williamson, 333 N.C. 128, 423 S.E.2d 766 (1992). The trial court's decision in that regard is afforded great deference because the trial court is in a far better position than an appellate court to determine whether the degree of influence on the jury was irreparable. Id. at 138, 423 S.E.2d at 772. Moreover, “when the trial court withdraws incompetent evidence and instructs the jury not to consider it, any prejudice is ordinarily cured." State v. Black, 328 N.C. 191, 200, 400 S.E.2d 398, 404 (1991); accord, Thomas, 350 N.C. at 341, 514 S.E.2d at 503 (N.C. 1999)(“Because the trial court cured any error by its action in sustaining the objection and giving the curative instruction, we find no prejudice to defendant warranting a mistrial”). In view (1) of defendant’s tactics regarding Shaibani, (2) of our case law on mistrial in general, and (3) of our case law on mistrial and curative instructions in particular, defendant’s second IAC claim is without merit. It should be denied or dismissed with prejudice. D. Defendant’s Third IAC Claim - 87 - Defendant’s last claim is that Rudolf should have moved for a mistrial when, during deliberations, a juror received a letter from a television reporter inviting them to a dinner after the trial was over. On Thursday, 9 October 2003 the clerk brought to the court’s attention “an item mailed to a juror.” With the jury absent the Court read pertinent excerpts of the letter to all counsel. The stated purpose of the letter was “to offer an opportunity for all of you to come together again after you’ve decided your verdict.” (78: 13395-96; emphasis added) The reporter specified a “certain date in the future” for a “juror dinner” at which she “want[ed] you all to be able to talk with each other as well as talk to me about getting through what all us called Camp Peterson.” A space for responding to the letter’s RSVP was included. The clerk added that the juror “knows all but one other has received something.” (78: 13395-97) After a brief recess, the clerk told Judge Hudson that “Susan said that Sonya came to her and asked her to tell the jurors that those letters should not have been mailed out. You know, they were not to be mailed out until after.” (78: 13399) Following a colloquy with counsel the trial court agreed that the matter should be handled by submitting a letter from the Court instructing the jurors not to consider the reporter’s letter of invitation. Judge Hudson instructed the foreperson to circulate among all jurors the curative instruction that had been drafted. - 90 - discretion in its denial of mistrial motion), cert. denied, 302 N.C. 400, 279 S.E.2d 354 (1981). A ruling denying a mistrial “will not be disturbed on appeal unless it is so clearly erroneous as to amount to a manifest abuse of discretion.” State v. Steen, 352 N.C. 227, 279, 536 S.E.2d 1, 31 (2000)(citations omitted), cert. denied, 531 U.S. 1167, 148 L. Ed. 2d 997 . A “trial court may be reversed for abuse of discretion only upon a showing that its ruling was manifestly unsupported by reason and could not have been the result of a reasoned decision." State v. Brown, 350 N.C. 193, 209, 513 S.E.2d 57, 67 (1999). Defendant Peterson has failed to show that his trial counsel was ineffective by failing to move for mistrial on the ground of the television reporter’s prematurely released invitation to a “juror’s dinner.” Defendant has failed to show that he received ineffective assistance of counsel. His request for relief from his conviction of first degree murder on the basis of his “ground seven” should be denied without further proceedings. CONCLUSION For the reasons discussed in detail above, the State requests this Court to deny summarily the claims for relief set forth in defendant’s “Grounds Four, Five, Six, and Seven” without further proceedings in the trial division. Respectfully submitted this the 27th day of February, 2009. - 91 - ROY COOPER Attorney General __________________________ John G. Barnwell Assistant Attorney General North Carolina Department of Justice P.O. Box 629 Raleigh, North Carolina 27602 Telephone: (919) 716-6500 jbarn@ncdoj.gov __________________________ William B. Crumpler Assistant Attorney General North Carolina Department of Justice Post Office Box 629 Raleigh, North Carolina 27602 Telephone: (919) 716-6500 bcrump@ncdoj.gov ___________________________ H. Dean Bowman Special Deputy Attorney General North Carolina Department of Justice Post Office Box 629 Raleigh, North Carolina 27602 Telephone: (919) 716-6500 DBowman@ncdoj.gov - 92 - CERTIFICATE OF SERVICE I hereby certify that I have this day served a copy of the foregoing STATE'S RESPONSE TO MOTION FOR APPROPRIATE RELIEF upon the defendant by placing same in the United States Mail, first class postage prepaid, addressed to his attorney of record as follows: Jason John Anthony Boone Beale 27 North 17th Street Richmond, VA 23219 This the 27th day of February, 2009. John G. Barnwell Assistant Attorney General