NORTH CAROLINA COURT OF APPEALS *************************************** STATE OF NORTH CAROLINA ) ) v. ) From Durham ) MICHAEL IVER PETERSON )

Transcription

1 NO. COA FOURTEENTH DISTRICT NORTH CAROLINA COURT OF APPEALS *************************************** STATE OF NORTH CAROLINA ) ) v. ) From Durham ) MICHAEL IVER PETERSON ) *************************************** STATE S RESPONSIVE BRIEF TO AMICUS BRIEF ***************************************

2 TABLE OF CONTENTS TABLE OF CASES AND AUTHORITIES ii QUESTION PRESENTED STATEMENT OF THE FACTS ARGUMENT THE TRIAL COURT DID NOT ERR IN ADMITTING THE RATLIFF EVIDENCE CONCLUSION CERTIFICATE OF SERVICE

3 - ii - TABLE OF CASES AND AUTHORITIES STATE CASES State v. Chapman, 342 N.C. 330, 464 S.E.2d 661 (1995), cert. denied, 518 U.S. 1023, 135 L. Ed. 2d 1077 (1996) State v. Hipps, 348 N.C. 377, 501 S.E.2d 625 (1998), cert. denied, 525 U.S. 1180, 143 L. Ed. 2d 114 (1999) State v. Lanier, 165 N.C. App. 337, 598 S.E.2d 596, disc. rev. denied, 359 N.C. 195, 608 S.E.2d 59 (2004) ,8,9 State v. Lloyd, 354 N.C. 76, 552 S.E.2d 596 (2001) State v. Moore, 335 N.C. 567, 440 S.E.2d 797, cert. denied, 513 U.S. 898, 130 L. Ed. 2d 174 (1994) ,9 State v. Murillo, 349 N.C. 573, 509 S.E.2d 752 (1998), cert. denied, 528 U.S. 838, 145 L. Ed. 2d 87 (1999) ,6 State v. Olson, 330 N.C. 557, 411 S.E.2d 592 (1992) State v. Parker, 137 N.C. App. 590, 530 S.E.2d 297 (2000) State v. Stager, 329 N.C. 278, 406 S.E.2d 876 (1991).. 4,6,7 State v. Underwood, 134 N.C. App. 533, 518 S.E.2d 231 (1999) RULES N.C. R. App. P. 28(b)(6)

4 NO. COA FOURTEENTH DISTRICT NORTH CAROLINA COURT OF APPEALS *************************************** STATE OF NORTH CAROLINA ) ) v. ) From Durham ) MICHAEL IVER PETERSON ) *************************************** STATE S RESPONSIVE BRIEF TO AMICUS BRIEF *************************************** QUESTION PRESENTED DID THE TRIAL COURT ERR IN ADMITTING THE RATLIFF EVIDENCE?

5 - 2 - STATEMENT OF THE FACTS The State incorporates by reference its statement of the facts in its brief responding to defendant s brief. ARGUMENT THE TRIAL COURT DID NOT ERR IN ADMITTING THE RATLIFF EVIDENCE. Amicus curiae supports defendant s position that the trial court should not have admitted the Ratliff evidence. The State incorporates by reference its second argument in its brief as appellee responding to defendant s brief but also addresses specific points argued by amicus as follows. Amicus has argued that admission of the Ratliff evidence was inconsistent with the requirements of due process. Amicus is not entitled to frame the issues before this Court. That is the job of the parties. The role of amicus curiae is such that it cannot present a question that defendant has not presented. It is limited to arguing in support of defendant s position as he has based his position, and it should not attempt to create a ground for relief that defendant does not rely on. Thus if defendant has not presented a constitutional issue for this Court to resolve, then amicus should not be able to present a constitutional issue. As the State has mentioned in its response to defendant s brief regarding the Ratliff evidence (State s Br. pp ), defendant makes a single reference to due process, a perfunctory reference. Under N.C. R. App. P. 28(b)(6) more is required to present a constitutional issue to an appellate court than merely

6 - 3 - asserting some constitutional violation. A specific constitutional argument with citation of authority is necessary. Absent such argument and citation, the defendant s evidentiary contention will be considered based on statutes or the rules of evidence. State v. Lloyd, 354 N.C. 76, 86-87, 552 S.E.2d 596, 607 (2001); see also State v. Chapman, 342 N.C. 330, 344, 464 S.E.2d 661, 669 (1995), cert. denied, 518 U.S. 1023, 135 L. Ed. 2d 1077 (1996). Defendant s argument concentrates on the rules of evidence and makes but passing reference to due process. He makes no due process argument as such and cites no authority as a constitutional basis for his due process claim. Cf. State v. Parker, 137 N.C. App. 590, 603, 530 S.E.2d 297, 305 (2000) (generalized reliance in argument on particular amendment without citation of authority insufficient for review especially when amendment not cited in assignment of error). In substance he has advanced his contention on the Ratliff evidence pursuant to the authority of the rules of evidence. He has not sufficiently advanced a contention pursuant to constitutional authority for review by this Court. Amicus should not be allowed to make up the difference. Because defendant has not presented a constitutional issue, amicus cannot do so. Amicus must rely on the rules of evidence just as defendant has done. Consequently, there is no constitutional issue for this Court to resolve, and the constitutional contention of amicus should be disregarded. As the Court will recall, amicus withdrew its second contention on the Ratliff evidence being admitted on one theory but

7 - 4 - used to support a different theory (Br. pp. 7-10), so that part of the argument is no longer before the Court. Further, in response to a motion by the State, the Court struck all references in the fourth contention to a juror s comment in a newspaper article (Br. pp ), and that part of the amicus brief likewise is no longer before the Court. In regard to Kathleen Peterson s death, amicus says, The case for accidental death was logical and rational; the case for homicide was visceral and emotional. (Br. p. 2) The State assumes counsel for amicus have not read the numerous volumes of evidentiary transcripts. No one who reads the transcripts with any sense of objectivity would make such a statement. The State s case against defendant was not merely convincing; it was powerful. The State s evidence aptly depicted a brutal, cold-blooded murder, and it aptly proved defendant to be the murderer. Amicus appears to be impressed with the pathology evidence from Germany. Practically by his own admission, Dr. Barnes was not competent to do a forensic autopsy of Elizabeth Ratliff. The AFIP had insufficient information to reach a proper conclusion. The testimony of Dr. Radisch and Dr. Gleckman presented a much more credible explanation of Liz s death than did the disturbingly inadequate inquiry in Germany. Several North Carolina cases reflect that it is not extraordinary for an earlier death that initially appeared to be accidental eventually to become Rule 404(b) evidence: State v. Stager, 329 N.C. 278, 406 S.E.2d 876 (1991); State v. Murillo, 349 N.C. 573, 509 S.E.2d 752 (1998),

8 - 5 - cert. denied, 528 U.S. 838, 145 L. Ed. 2d 87 (1999); State v. Lanier, 165 N.C. App. 337, 598 S.E.2d 596, disc. rev. denied, 359 N.C. 195, 608 S.E.2d 59 (2004). Amicus contends that the validity of the trial court s admission of the Ratliff evidence must be determined solely on the basis of the Rule 404(b) hearing without regard to any evidence that came in later. They also want this Court to set a rule limiting the evidence the State can present to the jury to that which was presented at the hearing. (Br. p. 4) This part of the amicus brief exceeds the position taken by defendant and therefore should be disregarded. Defendant made no such contention. Moreover, as pointed out in the State s other brief, our Supreme Court has established that the entire record, and not just the evidence offered on voir dire, is considered in determining the propriety of the ruling on motions like the instant one. (Br. pp , citing State v. Moore and State v. Silver) Trial courts have much needed discretion in controlling the course of a trial, the goal being the ascertainment of truth. Judge Hudson had to consider the availability of witnesses among other things insofar as the timing of the 404(b) hearing was concerned. The way trials often take place, the State could not necessarily know everything there was to offer on Liz s death prior to the hearing and could not necessarily be in a position to offer all its evidence at the hearing. The State should not be deprived of the opportunity to show additional evidence as it develops during trial.

9 - 6 - The rule by which the entire record and not just the evidence on voir dire is considered in determining the propriety of Judge Hudson s decision is sound, and even if this Court had the authority to overturn the rule, it should not do so. The rule promotes the ascertainment of truth. The proposal by amicus to limit the evidence the State can present to the jury to that which was presented at the 404(b) hearing would hamstring the prosecution and thwart the ascertainment of truth. Note that, before admitting the Ratliff evidence, Judge Hudson was not required to make a preliminary finding that defendant actually killed Liz. Stager, 329 N.C. at 303, 406 S.E.2d at 890. He conducted a Rule 404(b) hearing consistently with the standards set forth in decisions like Stager, 329 N.C. at , 406 S.E.2d at , and his findings of fact in light of the extensive voir dire should lead this Court to find no abuse of discretion in the admission of the evidence under the rule, cf. Murillo, 349 N.C. at 596, 509 S.E.2d at (in light of extensive voir dire and findings of fact by trial court, Supreme Court found no abuse of discretion in admission of 404(b) evidence). To be sure, the prosecution had to link defendant to the murder of Liz for the evidence to be admissible. A direct evidence link was not necessary, however. State v. Moore, 335 N.C. 567, 594, 440 S.E.2d 797, , cert. denied, 513 U.S. 898, 130 L. Ed. 2d 174 (1994). As shown in the State s other brief, the prosecution linked defendant to Liz s murder by opportunity, motive, and his suspicious statements at the scene.

10 - 7 - Given this link, the trial court properly admitted the Ratliff evidence under Rule 404(b) if it is substantial evidence tending to support a reasonable finding by the jury that the defendant committed a similar act or crime and its probative value is not limited solely to tending to establish the defendant s propensity to commit a crime such as the crime charged. Stager, 329 N.C. at , 406 S.E.2d at 890 (citations omitted) (emphasis in original). To be substantial, evidence must be existing and real, not just seeming or imaginary. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992) (internal quotation marks and citations omitted). For the purposes of its admissibility under Rule 404(b), the Ratliff evidence did not tend solely to establish defendant s propensity to commit murder. It was substantial evidence, and it tended to support a reasonable finding by the jury that defendant had committed a crime similar to the one charged. Its relevance is readily apparent considering that these two killings bore striking similarities as even amicus acknowledges (Br. p. 5). Judge Hudson did not have to ignore the striking similarities in determining admissibility under Rule 404(b). He could consider the similarities in deciding that there was substantial evidence tending to support a reasonable jury finding that defendant committed the first murder, so long as the prosecution provided the necessary link between defendant and the first murder. Naturally,

11 - 8 - no matter how similar the murders, the first one would not be admissible as 404(b) evidence if the prosecution could not connect defendant to it. Because the link was made, the similarities between the earlier and later acts could be considered by the judge on whether the Ratliff evidence was admissible. The State has argued this point in its other brief. (Br. p. 62) The decisions in Lanier, 165 N.C. App. 337, 598 S.E.2d 596, and State v. Underwood, 134 N.C. App. 533, 518 S.E.2d 231 (1999), support the point. In those cases the jury could infer from each defendant s connections to the prior victim and the similarities of the murders concerned that each defendant committed the act that was offered as 404(b) evidence. So, the similarities between prior and later acts can be considered by the jury in determining that the defendant committed the prior act so long as the trial court finds the requisite link between the defendant and the prior act. Having found the link, the judge also can consider the similarities on the question of admissibility of the prior act. Amicus claims that the only basis offered for defendant s being the last person to see Liz alive was her having dinner with the Petersons and his following her home to help with some household chores. (Br. p. 5) As shown in the State s statement of the facts and in its second argument in its other brief, the jury had reason to infer that defendant was with Liz late at night to bring her back from her taking her car to be serviced in another village. An inference may be drawn that she was attacked after she entered her house from defendant s bringing her back home. His

12 - 9 - being the last known person to be with her is highly relevant in showing his opportunity to kill her. Amicus complains about the sixteen years between the deaths. (Br. p. 6) In Murillo the prior death, which had been ruled accidental, occurred in The death for which the defendant was being prosecuted occurred in This gap was not too much for admission of the prior death as 404(b) evidence. 349 N.C. at 584, , 509 S.E.2d at 758, In State v. Hipps, 348 N.C. 377, 501 S.E.2d 625 (1998), cert. denied, 525 U.S. 1180, 143 L. Ed. 2d 114 (1999), the gap was seventeen years. Id. at 405, 501 S.E.2d at 642. The Court noted that remoteness is less significant when the prior conduct is used to show intent, motive, knowledge, or lack of accident. Id. (citations omitted). Remoteness generally affects just the weight to be given such evidence and not its admissibility. Lanier, 165 N.C. App. at 347, 598 S.E.2d at 603. There was no problem with remoteness here. Amicus says it has not found any case where the evidence linking defendant to an alleged prior criminal act is as weak as it is here. (Br. pp. 6-7) Perhaps amicus is looking in the wrong places. As pointed out in the State s other brief (Br. p. 60), opportunity and motive are important considerations in linking defendant to Liz s murder. See Moore, 335 N.C. at 595, 440 S.E.2d at 813. The prosecution showed both opportunity and motive and showed suspicious statements by defendant at the scene. It made enough of a connection between defendant and Liz s murder to

13 eventuate in Judge Hudson s deciding the evidence was admissible. The weight and credibility of the evidence was for the jury. Amicus expresses personal opinion in asserting that trial judges occasionally decide close evidentiary issues in favor of the prosecution believing that errors will be corrected on appeal. (Br. p. 10) The opinion should not be well received by this Court. Judge Hudson had to exercise discretion under Rule 403 in admitting the Ratliff evidence under Rule 404(b), and he did so (R p ). Neither amicus nor defendant has established that the judge s ruling was too arbitrary to have been the result of a reasoned decision. Similarly, they have established no abuse of discretion in the denial of the motion in limine. Anyway, Judge Hudson had a basis under Rule 402 as well as under Rule 404(b) for admitting the Ratliff evidence. Even if due process had been raised properly as an issue, neither amicus nor defendant has shown constitutional error. Like defendant, amicus has failed to show error in the admission of the Ratliff evidence and has failed to show prejudice in light of the strength of the State s case in other respects. This Court should find no merit in the contentions of amicus. CONCLUSION For the foregoing reasons, the argument of amicus curiae in support of defendant s position on the Ratliff evidence has no merit. This Court should reject the argument.

14 Respectfully submitted this the 17th day of January, Roy Cooper ATTORNEY GENERAL William B. Crumpler Assistant Attorney General North Carolina Department of Justice Post Office Box 629 Raleigh, North Carolina (919) bcrumpler@ncdoj.com John G. Barnwell Assistant Attorney General North Carolina Department of Justice Post Office Box 629 Raleigh, North Carolina (919) jbarn@ncdoj.com

15 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have this day served the foregoing STATE S RESPONSIVE BRIEF TO AMICUS BRIEF upon counsel for amicus curiae by placing a copy of same in the United States Mail, first class postage prepaid, addressed to counsel of record as follows: James G. Exum, Jr. Smith Moore, LLP 300 N. Greene Street, Suite 1400 Greensboro, NC Kerstin Walker Sutton Law Offices of Kerstin Walker Sutton, PLLC Post Office Box Durham, NC I have also served counsel for defendant as follows: Thomas K. Maher Attorney at Law 312 West Franklin Street Chapel Hill, NC This the 17th day of January William B. Crumpler Assistant Attorney General