Defendant's Appellate Brief in State v. Brad Cooper

Appeal from the criminal conviction of Brad Cooper in May of 2011 for the murder of his wife, Nancy Cooper.  At trial he was represented by Howard Kurtz and Robert Trenkle.  Credit for this exceptional brief goes to Ann Petersen and Jim Glover who worked diligently to parse out the most egregious errors made by the judge during a trial that spanned a full 10 weeks.

Scroll Down for the Actual Defense Brief.

After almost a year and a half, it is vindicating to read how truly uneven the playing field was given some of the trial judge's rulings and how unjustified those rulings were under established law.

To learn more about the Cooper case, you can explore our blog posts on the subject.  You can also spend days looking through an amazing resource created by a woman for whom superlatives are insufficient.  Lynne Blanchard created a website about the Cooper trial because, after watching it daily, she was so disturbed by what she saw.  Lynne also created a blog for the Cooper case as well.

Please excuse formatting errors as it appears a bit different when displayed on different browsers and nobody likes having to use an Adobe .pdf.

What follows is the actual appellate defense brief for Brad Cooper that was filed on November 5, 2012:

 

No. COA12-926                                   TENTH DISTRICT

NORTH CAROLINA COURT OF APPEALS

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

STATE OF NORTH CAROLINA

     v.

BRADLEY GRAHAM COOPER

)
)
)
)
)

 

From Wake

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

DEFENDANT APPELLANT'S BRIEF

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

-- ii --

 

I N D E X

TABLE OF CASES AND AUTHORITIES............................................... iii

STATEMENT OF THE CASE.................................................................. 1

STATEMENT OF GROUNDS FOR APPELLATE REVIEW.................. 1

STATEMENT OF THE FACTS................................................................ 1

ARGUMENT............................................................................................ 20

  1. PRECLUDING THE TESTIMONY OF GIOVANNI MASUCCI AS A SANCTION FOR PURPORTED DISCOVERY VIOLATIONS WAS AN ABUSE OF DISCRETION AND DEPRIVED DEFENDANT BRAD COOPER OF HIS STATE AND FEDERAL CONSTITUTIONAL DUE PROCESS RIGHT TO PRESENT A DEFENSE........................................... 20

    1. Controlling Law and andard of Review......... 24

    2. No Discovery Violation............................... 26

    3. C.   Denial of Constitutional Rights............... 28

  2. THE TRIAL COURT’S RULING THAT JAY WARD WAS NOT QUALIFIED TO GIVE EXPERT TESTIMONY ABOUT TAMPERING ON DEFENDANT BRAD COOPER’S COMPUTER WAS AN ABUSE OF DISCRETION AND DEPRIVED DEFENDANT BRAD COOPER OF HIS STATE AND FEDERAL CONSTITUTIONAL DUE PROCESS RIGHT TO PRESENT A DEFENSE     33

    1. Standard of Review..................................... 35

    2. Analysis...................................................... 35

  3. DENIAL OF THE DEFENSE MOTION FOR PRETRIAL DISCOVERY OF THE FILES OF THE STATE’S COMPUTER EXAMINERS AND MOTION AT TRIAL PRODUCTION OF THE DATA CREATED BY THE STATE’S COMPUTER EXAMINERS IN SEPTEMBER 2008 AND FIRST DISCLOSED TO THE DEFENSE DURING TRIAL ON 13 APRIL 2011 WAS ERROR WHICH DEPRIVED DEFENDANT COOPER OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHT TO CONFRONTATION AND HIS DUE PROCESS RIGHT TO PRESENT A DEFENSE........................ 38

    1. Standard of Review..................................... 41

    2. Work Product Privilege............................... 42

    3. Law Enforcement Privilege.......................... 43

-- iii --

CONCLUSION............................................................. 46

CERTIFICATE OF SERVICE AND FILING BY MAIL...... 47

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TABLE OF CASES AND AUTHORITIES

Cases Cited

Bowling v. Vose, 3 F.3d 559 (1st Cir. 1993),
cert. denied , 510 U.S. 1185 (1994)....................................... 30

Chambers v. Mississippi,
410 U.S. 284 (1973)............................................................... 25

Commonwealth v. Reynolds,
429 Mass. 388, 708 N.E.2d 658 (1999).................................. 30,31

Coughlin v. Lee,
946 F.2d 1152 (5th Cir. 1991)................................................. 44

Crane v. Kentucky,
476 U.S. 683 (1986)................................................................ 25

Hamilton v. Thomasville Med. Assocs.,
187 N.C. App. 789, 654 S.E. 2d 708 (2007), disc.
  review denied, 362 N.C. 681, 670 S.E.2d 232 (2008) )........ 37

Howerton v. Aria Helmet, Ltd.,
358 N.C. 440, 597 S.E.2d 674 (2004).................................... 35, 36

Michigan v. Lucas,
500 U.S. 145 (1991)............................................................... 25

People v. Scott,
339 Ill. App. 565, 791 N.E.2d 89 (2003), leave to
  appeal denied, 339 Ill.3d 632, 893 N.E.2d 496 (2003). 26, 30

Pulinario v. Goord,
291 F. Supp.2d 154 (E.D.N.Y. 2003), aff’d, 118 Fed. Appx. 554,
2004 U.S. App. LEXIS 26803 (2d. Cir. 2004)........................ 24

Rock v. Arkansas,
483 U.S. 44 (1987)................................................................. 25

State v. Bates,
348 N.C. 29, 497 S.E.2d 276 (1998)...................................... 41

State v. Cobb,
962 P.2d 944 (Colo. 1998)..................................................... 31

State v. Delgado,
174 Ariz. 252, 848 P.2d 337 (Ariz. Ct. App. 1993)................ 30

-- v --

State v. Harris,
819 So.2d 844, 2002 Fla. App. LEXIS 6605 (2002).............. 45

State v. Gillespie,
362 N.C. 150, 655 S.E.2d 355(2008).................................... 25

State v. Hardy,
293 N.C. 105, 235 S.E.2d 828 (1977)................................... 42

State v. Heatwole,
344 N.C. 1, 473 S.E.2d 310 (1996)....................................... 42

State v. McClintick,
315 N.C. 649, 340 S.E.2d 41 (1986)..................................... 31

State v. Miller,
344 N.C. 658, 673, 477 S.E.2d 924 (1996)........................... 24

State v. Moore,
152 N.C. App. 156, 566 S.E.2d 713 (2002).......................... 25

State v. Thompson,
1996 Tenn. Crim. App. LEXIS 31 (1996), permission
  to appeal denied, 1996 Tenn. LEXIS 450 (1996)................ 30

Taylor v. Illinois,
484 U.S. 400 (1988).............................................................. 24-26, 28

United States v. Finley,
301 F.3d 1000 (9th Cir. 2002)............................................... 30

United States v. Foster,
986 F.2d 541 (D.C. Cir. 1993).............................................. 42, 45

United States v. Levy-Cordero,
67 F.3d 1002 (1st Cir. 1995)................................................. 26

In re U.S Dept. of Homeland Security,
459 F.3d 565 (5th Cir. 2006)................................................. 44

Vasquez v. State,
868 N.E.2d 473 (Ind. 2007).................................................. 30

Washington v. Texas,
388 U.S. 14 19 (1967).......................................................... 24

-- vi --

Statutes Cited

N.C.G.S. § 15A-903............................................ 43

N.C.G.S. § 15A-903(a)(1)................................... 43

N.C.G.S. § 15A-903(a)(2)................................... 43

N.C.G.S. § 15A-904............................................ 43

N.C.G.S. § 15A-904 904(a)................................ 43

N.C.G.S. § 15A-905(c)(2).................................. 26

N.C.G.S. § 15A-905(c)(3).................................. 26

-- 1 --


No. COA12-926                                   TENTH DISTRICT

NORTH CAROLINA COURT OF APPEALS

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

STATE OF NORTH CAROLINA

     v.

BRADLEY GRAHAM COOPER

)
)
)
)
)

 

From Wake

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

DEFENDANT APPELLANT'S BRIEF

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

 

QUESTIONS PRESENTED

 

  1. WHETHER PRECLUDING THE TESTIMONY OF GIOVANNI MASUCCI AS A SANCTION FOR PURPORTED DISCOVERY VIOLATIONS WAS AN ABUSE OF DISCRETION AND DEPRIVED DEFENDANT BRAD COOPER OF HIS STATE AND FEDERAL CONSTITUTIONAL DUE PROCESS RIGHT TO PRESENT A DEFENSE.

  2. WHETHER THE TRIAL COURT’S RULING THAT JAY WARD WAS NOT QUALIFIED TO GIVE EXPERT TESTIMONY ABOUT TAMPERING ON DEFENDANT BRAD COOPER’S COMPUTER WAS AN ABUSE OF DISCRETION AND DEPRIVED DEFENDANT COOPER OF HIS STATE AND FEDERAL CONSTITUTIONAL DUE PROCESS RIGHT TO PRESENT A DEFENSE.

  3. WHETHER THE TRIAL COURT’S DENIAL OF THE DEFENSE MOTION FOR PRETRIAL DISCOVERY OF THE FILES OF THE STATE’S COMPUTER EXAMINERS AND MOTION AT TRIAL PRODUCTION OF THE DATA CREATED BY THE STATE’S COMPUTER EXAMINERS IN SEPTEMBER 2008 AND FIRST DISCLOSED TO THE DEFENSE DURING TRIAL ON 13 APRIL 2011 WAS ERROR WHICH DEPRIVED DEFENDANT COOPER OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHT TO CONFRONTATION AND HIS DUE PROCESS RIGHT TO PRESENT A DEFENSE.

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STATEMENT OF THE CASE

On 27 October 2008, the Wake County Grand Jury returned an indictment charging Defendant-Appellant Brad Cooper with the murder of Nancy Cooper, his wife. (Rp. 4) The murder charge was prosecuted non-capitally. (Rp. 27)

The case came on for trial at the 28 February Regular Criminal Term of the Wake County Superior Court, the Honorable Paul G. Gessner, Superior Court Judge, presiding. (Rp. 1, 11)

On 5 May 2011, the jury returned verdict finding Defendant Brad Cooper guilty of first degree murder. (Rp. 561) He was sentenced to imprisonment for life without parole. (Rpp. 652-563)

Defendant Brad Cooper gave  notice of appeal in open court at the time of entry of the judgment and commitment. (Tpp.

STATEMENT OF GROUNDS FOR APPELLATE REVIEW

This is an appeal of right pursuant to the provisions of N.C.G.S §§ 7A-27(b) and 15A-1444(a) and Rule 4(a), N.C.R. App. P., from a final judgment of conviction by a criminal defendant who pled not guilty and was found guilty of a non-capital crime.

STATEMENT OF THE FACTS

Brad and Nancy Cooper, nee Rentz, both Canadian, married in Calgary in October 2000. The marriage had been scheduled for the following spring. It was moved up, because Brad had accepted a job at Cisco, so that he could bring Nancy with him to North Carolina. They moved to Cary in January 2001. They bought a house in the Lochmere subdivision of Cary, 104 Wallsburg Lane. The Coopers had two children, Bella, born in February 2004, and

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Katie, born in August 2006. (Tpp. 2111-12, 3373-74,3377, 5644-45)

Nancy was a stay-at-home mother. She did not have a work visa. Brad’s work at Cisco was in VOIP voice over internet protocol. Both were athletic. Brad trained for and competed in triathlon and iron man races. Nancy was a runner and competed in races. She had signed up to run in the Rock and Roll half-marathon in Virginia Beach scheduled in August 2008. Brad worked long hours. He was also in an executive MBA program at N.C. State, beginning in August 2005. He graduated from the program in December 2007. (Tpp. 2117, 2122-24, 2376, 2403-05, 2523-24)

On Saturday, 12 July 2008, Jessica Adam, a friend of Nancy’s, reported her missing to the Cary police. That day, people began searching. Massive searches for her were conducted on Sunday and Monday, 13 & 14 July. (Tpp. 2214-18, 2345-46, 2395, 2454)

William Boyer, who lived at 4712 Fielding Drive, found the partly decomposed body of a woman while walking his dog during the late afternoon on Monday, 14 July, 2008. The body was in a sediment basin at the end of a cul-de-sac, Brittabby Court. This was an area being developed by Toll Brothers. No house construction had yet begun on Brittabby Court. The body was face down with the legs spread apart some. The body was naked save for a sports bra rolled up under the arms, above the breast. (Tpp. 2038-46, 2086-95, 3181)

An autopsy was done on 15 July, at the Medical Examiner’s office in Chapel Hill. Based on dental records, the body was identified as that of Nancy Cooper. Based on the moderate

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decomposition, the Medical Examiner was of the opinion that she was dead or dying the day she was reported missing, consistent with her leaving the house at 7:00 a.m. and being killed sometime in the next three to five hours. The only significant injury found was a fracture of the hyoid bone. She could have had other minor injuries, bruising from being grabbed, that the Medical Examiner could not see because of the decomposition. The Medical Examiner’s opinion was that the cause of death was strangulation. The Medical Examiner did not see any injuries to the pelvic region, but that did not mean there was no sexual assault. (Tpp. 3177-3182, 3186, 3192-3193, 3205-3209)

Witnesses at trial, neighbors in the Lochmere subdivision and others, gave testimony about Brad and Nancy Cooper, many of them recounting what Nancy told them about Brad. There was trouble in the marriage.

Nancy’s twin sister, Krista, got married in Canada in August 2001. Earlier that year, Nancy had been in Florida with a family member where she met and started an affair with a man. That summer, Brad and Nancy Cooper took a trip to Sea Trial with Christy Wells and her husband, another couple who were new to the area and newlyweds. While the men played golf, Nancy confided in Christy about the man from Florida, saying she loved him, that he didn’t care that she was married, and that he was going to help her get a green card so she could get a job and leave Brad. The man came to Canada for Krista’s wedding. (Tpp. 5167-68, 7434-7441)

In October 2005, Nancy attended a Halloween party at the

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Hiller residence in the neighborhood. Brad was out of town and did not attend the party. Nancy asked John Pearson to walk her home. He went in the house, went upstairs and took a shower and came back to the living room. They both got undressed. Pearson testified that he thinks they started to have sex and then stopped. Katie was born nine months later. Pearson and Nancy talked about that. They both agreed that Katie could not be his child cause neither of them had a memory of having intercourse. (Tpp. 2288-90, 2301, 7809-12, 7748-49, 7792-93)

At some point, Brad had an affair with Heather Metour. Heather had been married to Scott Heider. They lived in the neighborhood. Heather and Nancy were very good friends. Scott moved out at the end of 2006 and went through a divorce. Nancy was told of the affair in 2007 by Heather. Brad denied it for some period of time. Around New Years, he finally admitted it. After that, Nancy was telling people she wanted a divorce. In February, Brad removed her authorization to charge on his credit cards. She had none in her own name. Brad asked her to open a bank account in her own name so he could deposit money in it. She claimed that she was told by the bank that she could not open a bank account without a social security number. Brad put her on a cash allowance that they finally set at $300.00 per week. Nancy complained, to many and often, that he wasn’t giving her enough money to cover the groceries. (Tpp. 2130-34, 2149, 2238, 2382, 2426-30, 2435, 2496, 2510-12, 3945-47, 3851-52, 4631-40, 5485, 5663-72, 5687, 5775)

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Nancy’s original plan was to move to Toronto with the girls and live with her sister, Krista. Plans were made for her to move at the end of April 2008. A going away party was planned for 19 April. Nancy met with a family lawyer, Alice Stubbs, in mid-March. Nancy borrowed $7,500.00 for the lawyer’s initial retainer. Nancy and Brad both agreed that they would repay her parents out of the proceeds from the sale of their house. (Tpp. 2139-42, 2379, 2524-15, 3390-92)

Attorney Stubbs drafted a separation agreement containing what she described as fairly aggressive terms. It provided that they would have joint legal custody, but that the children would live with Nancy. Nancy could move to Canada at any time. Brad would pay monthly child support, based on the support guidelines, of $2,100.00 He was also to pay alimony for eight years in an amount that was left blank. He was to pay all of the costs of private schools, including tuition, clothing and extracurricular activities. He was to pay for health and dental insurance and all expenses not covered by the insurance. He was to pay all of the expenses of travel for every other weekend visitation with the children, including the expenses for Nancy to travel with them if the visitation occurred in North Carolina. The house was to be sold with the proceeds first used to pay off outstanding loans and debts, with the balance to go to Nancy. (Tpp. 5375-85, 5400-07, 5410)

After receiving the separation agreement, Brad was no longer agreeable to having Nancy move to Canada with the children. Nancy’s father testified that the cost of flying back and forth

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for visitation with the children was pretty outlandish. Brad tried to find a job in Ontario, but couldn’t. The plan for Nancy to move to Toronto with the children was called off. At some point, Brad took possession of the passport for one or both of the children so that Nancy could not leave for Canada with them. (Tpp. 2379, 3926-27, 5485, 5691)

Nancy’s attorney told her she had to continue to live in the house with Brad until there was a signed separation agreement or a court order for custody and support of the children. Any litigation in court would require payment of additional attorney’s fees. Nancy’s attorney had little communication with her in May and June, and none after early June. Brad and Nancy continued to live in the house. They slept in separate bedrooms. Nancy did the laundry for herself and children. She did not cook or do laundry for Brad and did not clean the bedroom or bathroom he was using. They continued to socialize some with the same people. Nancy did a lot of socializing with her friends at night while Brad stayed home to take care of the children. (Tpp. 2150, 5485-89)

In late June 2008, Nancy and the children went on a vacation at High Rock Lake and Hilton Head with her family. Nancy returned home on the Monday before the day she went missing. She complained to many people that, when she returned, she found the house was a mess, with dirty dishes and bugs in the kitchen. Brad said that he was working 15-16 hours a day while Nancy and the children were gone to catch up on work because he had been working 8 hour days while they were home so he could spend more

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time with the children and Nancy could go out at night with her friends. (Tpp. 2176-78, 2286, 2290, 3394-3402, 3919-3921)

On 10 July 2008, Wednesday, the exterminator who provided their regular, quarterly service came to the house at Nancy’s request. He found the house a mess, with clothes on the floors and a couple of meals worth of dishes on the counters and in sinks and ants in the kitchen. He testified that Nancy was not neat, and the house had been in a similar condition for at least his last four visits. Nancy’s father sent her money to buy an electric toothbrush. Nancy called him on 8 July to tell him that she had to use that cash to pay the exterminator. The exterminator did not require advance payment when he got to the house, even though it was common for the Cooper’s to pay his bill late. (Tpp. 4850-4881)

On Tuesday and Wednesday, Nancy painted a room at Jessica Adam’s house to raise some spending money. Diana and Craig Duncan lived across the street from the Coopers. They invited people that worked with Diana and neighbors to their house for a barbeque on the evening of Friday, 11 July. The Coopers were invited. Nancy arrived about 6:00 p.m. with the children. Nancy complained that Brad would not give her any cash that day because he found out that she had made some money painting at Jessica’s. Brad later told the police that Nancy had left $100 on the table in the foyer to repay the money he spent for the paint and supplies Nancy used and assumed that she still had money left from the prior week and was going to give her the weekly allowance on Saturday. (Tpp. 2183-85, 2338-39, 2386-87, 2528-31,

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3955)

Brad arrived at the Duncan party about 7:00 p.m. He had kid duty that night, and spent his time watching the children. Diana Duncan testified that Nancy fussed at him, calling him an idiot, when he had trouble getting Katie to eat. Brad left about 8:00 to take the children home and put them to bed. While Brad was there, he made plans with Mike Hiller to play tennis at 9:30 the following morning. Mike spoke to Nancy to make sure that it would be no problem if they played tennis at that time. Nancy agreed to it. Nancy stayed at the Duncan’s until a little after midnight, and then went home. (Tpp. 2187-96, 2333-35, 2340, 2351-54, 8009-18)

All of the witnesses described Nancy as an exceptional mother and Brad as a good father. Nancy was outgoing and social. Brad was private, shy and not outgoing. None of witnesses saw or heard Nancy claim that Brad had ever threatened or physically abused her or that she was afraid of him for any reason. She said nothing about being afraid of him to the people she spoke to on the night of 11 July at the Duncan’s. (Tpp. 2284-85, 2355, 2403-06, 2411-12, 2476, 2503-04, 4701, 4770-71, 7999-8000)

On 12 July, Brad Cooper and Jessica Adam had a series of telephone conversations with other people on the question of where Nancy was, before Jessica called the police to report Nancy as missing. As the word began to spread that Nancy had not been heard from since the morning, people began gathering outside the Cooper residence. Even before Nancy’s body was found three days later, many of them were expressing a belief that Brad had done

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something to her. (Tpp. 2200-02, 2454-55, 2564-65, 2569, 2572, 8021-23)

Jessica Adam spoke to Hannah Pritchard, another of Nancy’s friends, about 1:00 p.m. and said that Nancy was supposed to be at her house at 8:00 a.m. that morning to do more painting. Jessica told Hannah that Jessica thought Brad had done something to Nancy. This was before Jessica called the police to report Nancy missing. When Mike Hiller went to the Cooper house later that afternoon after hearing that Nancy was missing, he talked to Jessica outside the house. She was cursing, saying that she knew Brad had done it. Jessica testified that she had no recall of making that kind of comment. (Tpp. 4662-66, 4702, 8013-25)

Nancy’s sister, Krista, called the Cooper house about 10:00 a.m. on 12 July and asked Brad if Nancy was there. He said, no, that she had gone for a run. Krista was informed later on 12 July by Diana Duncan that Nancy had not been heard from since the morning. Krista called the Cooper house again. She asked Brad if he knew where Nancy was. He said no. She said he had done something to her and hung up the phone. (Tpp. 5133-34, 5169)

Craig Duncan, Diana’s husband, testified that he went over to sit with Brad on the front stoop of the Cooper house the afternoon of the 12th when Nancy had not returned. He asked Brad how he was doing. Brad said the police kept asking him the same questions. Later that evening, he walked with Brad to the Morwick’s where the Cooper children were staying. Craig testified that he knew in his heart at that point that Brad had killed Nancy. Diana Tabachow, another neighbor, did not contact Brad

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after 12 July because she didn’t think anyone else could have done it. (Tpp. 2414, 2479-82)

After Jessica called the police, Daniel Hayes, the first Cary officer to respond, arrived at the Cooper house at 2:30 p.m. Brad was not there. Jessica told him that Brad and Nancy were having problems, that the problems were getting worse, and that something may have happened to her because of that. (Tpp. 2690-93)

Brad arrived at the house about 3:00 p.m. He was in his vehicle with his children. He had been driving around to places Nancy might have gone, trying to find her. Officer Hayes said they needed to talk about why they could not find Nancy. Brad said he needed to take care of his children. One of the neighbors took the Cooper children. Brad told Officer Hayes he could come in the house, allowed him to walk through it, and then sat at the table and told him about the events of that morning. Cary Detective Adam Dismukes arrived at the house at 4:05 p.m. and questioned Brad again about the events of that morning. Detective George Daniels came to the house at 6:35 p.m. He questioned Brad about the events of that morning and of the night before and about their marriage. At the end of that, Daniels asked for permission to take photographs of the house and of the Cooper vehicles. Brad gave his consent. Photos were taken of every room in the house. (Tpp. 2700-10, 2756-61, 2766-86)

Detective James Young arrived at the Cooper house at 8:00 p.m. that evening. An officer with a tracking dog came to the house a short while later. Young asked Brad for an article of

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clothing to use in the K9 search. He asked about the dress Nancy wore the night before. Brad said he thought it was a blue dress. Diana Duncan came in the house. She said she thought it was a black dress. They could not find a black or a blue dress that matched the descriptions. Later, the dress Nancy was wearing was identified as a green dress that was in a laundry basket in the house. Young asked Brad about running shoes. Brad pointed out a pair of the brand of shoes Nancy usually wore. Young took it to the K9 officer. The K9 officer knew it would be difficult for the dog to pick up a track, because it had been 13 hours since Nancy had been at the house. The dog would not track. The dog wanted to go into the house where Nancy’s odor was the strongest. (Tpp. 2733-2747, 2870-86)

The officers left the Cooper house at 10:00 p.m. Young was sent back to the house at 9:55 the next morning, 13 July, to follow Brad when he went to the grocery store. When he told Brad what he was going to do, Brad said okay. Young followed to the store, into the store and back to the house. At 11:20 a.m., Detective Daniels joined Young, purportedly to given Brad an update. Brad was questioned again about the state of his marriage and the events of the prior day. Brad said he found the green dress that Nancy was wearing Friday night and gave it to them. Young and Daniels left the house at about 1:00 p.m. (Tpp. 2790, 3895-3902)

On Monday, 14 July, Brad was taking part in the searches for Nancy. Young found him and asked him to come back to his house so Daniels could talk to him. Brad was again questioned about the

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state of his marriage and about the events of Friday and Saturday. At the end of the questioning, Daniels asked for and got Brad’s consent to look through the cars.

Nancy’s parents and sister, Krista, arrived in Cary that day. The Cary police took Krista to Hannah Pritchard’s house were the Cooper children were at that point. Krista called Brad and told him she wanted the children to stay with her and her parents. Brad said no, he was coming to take them home. When Brad arrived at Hannah’s house to get the children, he invited Krista to stay at the house. She said no. (Tpp. 2218, 3940-3969)

The Rentz family then took action to get custody of the Cooper children. On Wednesday, 16 July, an emergency order was issued giving Nancy’s parents and sister custody of the children. They took custody of them that day. During the custody litigation that followed, Brad Cooper was deposed by the Rentz family’s lawyers for a full day on 2 October. All of the questions to Brad and answers he gave where presented the jury by playing the video tape of the deposition. (Tpp. 5134-38, 3401-04)

On Tuesday, 15 July, the three detectives went back to the Cooper house around mid-day. They regarded Brad Cooper as a suspect and thought that Nancy had been killed in the house sometime after she returned from the party at the Duncan’s. They wanted to search the house, by consent or with a warrant. Daniels arrived first. He asked for consent to search the house and Brad agreed. When Dismukes and Young arrived, they gave Brad a written form for consent to search. After telling Brad what it was they wanted him to sign, Brad said that they thought he was a suspect

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and that he wanted to talk to an attorney and refused to sign the form. They told Brad they would get a warrant and posted an officer at the house to make sure no one touched anything in the house. (Tpp. 2821-2826, 6539-6534)

At 2:25 p.m., Brad gave Officer David Hazlezet permission to enter the house to make sure no evidence was destroyed. He followed Brad around the house while he took a shower and had telephone conversations, including some that appeared to be with a lawyer. Haslezet had seen straw of the kind to cover new grass seed at the site where Nancy’s body was found. He testified that he saw a piece of straw on the carpet when he first entered the house. Hazlezet stayed in the house until almost 5:00, when Brad asked when Daniels was coming back. When told it would be some time after the 5:00 p.m. press conference, Brad asked Hazlezet to step outside. On directions of Daniels, Hazlezet went back inside to seize the house. He told Brad that warrants had been issued and that he would have to leave the house and leave the cars. Scott Heider came to the house and picked Brad up. Brad stayed at Heider’s house while the house was in the custody of the Cary police. (Tpp. 4926-38, 4945-53, 7785-89)

In his multiple statements and deposition, Brad Cooper gave the following account of the events of 11-12 July: On Friday night, he brought the girls home from the Duncan’s and put them to bed. He was lying down with the girls when Nancy came home about sometime after midnight. Katie woke about 4:00 or 4:30 a.m. He tried to get her to drink water and go back to sleep. She wanted milk. They had none in the house. He went to Harris-Teeter

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about 6:30a.m., bought milk, and returned home. Nancy had started doing some laundry. They were out of detergent. He went back to Harris-Teeter for detergent. On the way, Nancy called and asked him to get green juice for Bella. He bought detergent and green juice and returned home. He took Katie upstairs to his office and was working on his computer. Nancy called up to him asking if he knew the location of an article of clothing. He told her to check the banister where they sometimes left clothes to dry. About 7:00a.m., Nancy called up to say she was going for a run. He heard the front door close. He did not see her leave and didn’t know what she was wearing. When Nancy didn’t return by the time for his scheduled tennis match, he called Mike Hiller and the match was canceled. He did some laundry and some cleaning. In the early afternoon, he put the girls in the car and drove around looking for Nancy. (Tpp. 2705-08, 2757-60, 2777-82, 3905-16, 3852-59)

Receipts and surveillance videos for 12 July 2008 confirmed that Brad purchased milk at the Harris-Teeter at 6:25 a.m., left the store, and then returned and purchased Tide and Naked Green Machine juice at 6:44 a.m. (Tpp. K3051-52, 3122-23, 4132-56)
The warrants to search the Cooper house and vehicles were actually signed in the early morning hours of 16 July. The Cary police had custody of the house for searches, first by agents from CCBI and then by the Cary detectives until 12:20 a.m. on Friday, 18 July. (Tpp. 3339-41, 3438-47, 4046-82)

The investigating officers collected every stained item and tested every location in the house and the vehicles with

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chemicals to detect blood not visible to the eye. No trace of blood was found anywhere. They found no sign of a struggle anywhere in the house or car. A set of tire impressions were found at the site where Nancy’s body was found. The wheel base for those tire impressions was narrower that the wheel base of Brad Cooper’s vehicle. A rug from the house and the sheet used to cover Nancy’s body when it was found were examined for any trace evidence that might have come from the carpet in the trunk of Brad’s car. None was found. (Tpp. 2713, 2950-71, 3469, 3474-86, 3537-38, 3557-61, 3573-75, 3596, 3612-22, 3628-30, 3639-49)

Flyers with Nancy’s photo were widely circulated in the community. A number of people reported seeing someone like her jogging on the morning of 12 July. Rosemary Zednick was walking her dog in an area near Lochmere Drive about 3/4th of a mile from the Cooper residence. She checked her watch at 7:10 a.m. Just after that she saw a female jogger on a bike path pass her. The jogger was wearing a light top and dark shorts, was in good shape, had a tan like a pool mom and appeared to have recently started out, because she was not sweaty. Later, a neighbor handed her a flyer of the person who was missing. She was confident that the jogger she saw that morning was Nancy Cooper. She called the Cary Police Department and told the person on the phone what she saw. (Tpp. 7525-40, 7562-64)

Curtis Hodges was driving to work on 12 July. He was supposed to start work at 7:00 a.m. and was running late. As he was driving north on Kildaire Farm Rd., he saw a female jogger come toward him on his side of the road. She was in her mid-30’s

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and was wearing a light top and dark shorts. There was an old van traveling south on the road. It stopped and then made a U-turn so it was traveling north behind him, when the jogger was still 100’ ahead of his vehicle. When he stopped at the next light, the van was no longer in sight. The next Monday, there was a flyer with Nancy Cooper’s photo next to the time clock at the store where he worked. After thinking about it, he realized that he had previously seen the woman in the store where he worked. He was 90% certain that the jogger he saw was Nancy Cooper. He called the Cary Police on 14 July to report what he had seen, and was told an investigator would call back. There was no contact back until mid-October and that was merely a telephone call. (Tpp. 7566-83)

During the search of the Cooper residence with the warrant in July, a number of computers were seized. They were analyzed by two forensic computer examiners, FBI agent Greg Johnson, and Durham Detective Chris Chappell, who were assigned to the FBI Computer Analysis Response Team [CART]. To analyze the contents, they used a machine to produce a write blocked copy of each hard drive, so that nothing on it could be changed, and then used forensic tools, computer programs, to extract data. There was a great deal of evidence offered about files found on those computers such as e-mails, web-site visits and financial spread sheets. (Tpp. 3709, 3734, 3801-14, 5858-65, 5872-94)

In the temporary internet folders in the Cisco lap top assigned to Brad Cooper, the examiners found a series of files from Google Map. When some of the graphic files were put

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together, they showed a satellite view of the area on Fielding Drive where Nancy Cooper’s body was found. The times on these files began at 1:15 p.m. on 11 July 2008. At that time, Brad’s computer was connected to the Cisco network. The examiners did an experiment on 15 September 2008 by visiting the Google Map site and manipulating the map to move the center of the map and zoom in on the image to try to replicate the files found on Brad Cooper’s lap top. Based on this experiment, the CART examiners offered their opinion that the files on Brad Cooper’s lap top were created by someone using that computer when it was at the Cisco offices at 1:15 p.m. on 11 July to do a map search for the zip code 27187 and then moving east on the map and zooming in until the image was centered over the area where Nancy’s body was found. (Tpp. 6274-6311)

When Brad Cooper was required to leave his home at 5:20 p.m. on 15 July 2008, his lap top computer was in his home office, powered up and connected to his home wireless network until the computer was unplugged and the battery removed the following night, 27 hours later. During this period of time, 609 files on the computer were modified. Brad Cooper’s wireless network was encrypted with WEP, the least secure protection from intrusion that there is. This kind of system can be penetrated in a matter of minutes by use of programs freely available on the internet that are simple to use. The date and time on files can also be done by programs freely available on the internet that are simple to use, even by a novice. In addition, the Google Map files showed some anomalies that could be created by the insertion of

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files onto a computer from an outside source. There were 507 Google Map files, all created in the space of 41 seconds. These files contained invalid filestamps. Nonetheless, the CART examiners offered the opinion that there was no evidence in the computer of any files being manipulated, added to the computer or tampered with. (Tpp. 6011-12, 6019, 6094-96, 6102-13, 6118, 6137-38, 6142-49, 6322-23)

The defense proffered evidence from two experts, Jay Ward and Giovanni Masucci, that these Google Map files in the temporary internet folders were placed on that computer from an outside source and that the times associated with those files, 1:15 p.m. on 11 June, was tampered with to make it appear that was when the files were created when they were in fact created at a different date and time. The files could have created and placed on the computer during the 27 hours on 15 and 16 June when Brad Cooper’s lap top was left connected to his home wireless network after he was required to leave his residence.

Each file actually has four different times associated with it, kept in two different registers, system information and file name. The four times are modified, accessed, created and entry modified. The file entry modified timestamp in system information were marked as invalid in all of the Google Map files found on Brad Cooper’s lap top. This is the result that can be created when a file is inserted into a computer from an outside source. The Google Map files included cursor files which are created when the computer cursor is moved over the screen to move the map and zoom in or out. Save for the entry modified in system

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information, all seven of the filestamps recorded precisely the same time, down to the nano second. Because moving the cursor requires some time, the timestamps in the cursor files have to change between the time created and the time last accessed. The fact that the filestamps in the different fields did not change shows that these files were not created by a Google Map search by Brad Cooper’s computer. Brad Cooper’s home wireless network had a very weak encryption system which made it vulnerable to being entered from the outside in a matter of minutes by programs freely available on the internet that can be used by even a novice in computers. Changing the times on files can also be done by programs freely available on the internet that are simple to use, even by a novice. (Tpp. 8252-8281; D EX 154 [Masucci report] and D EX 84 [Ward report])

The jury heard none of the defense evidence of tampering related to the Google Map files, because the expert witnesses were not allowed to give their evidence to the jury for reasons discussed in the arguments below.

ARGUMENT

  1. PRECLUDING THE TESTIMONY OF GIOVANNI MASUCCI AS A SANCTION FOR PURPORTED DISCOVERY VIOLATIONS WAS AN ABUSE OF DISCRETION AND DEPRIVED DEFENDANT BRAD COOPER OF HIS STATE AND FEDERAL CONSTITUTIONAL DUE PROCESS RIGHT TO PRESENT A DEFENSE.

The State began presenting evidence on Monday, 10 March 2011. The State rested its case in chief on Monday, April 18. (Tp. 6899) Near the end of its case, the State presented its most critical evidence, files from Google Map found in the temporary

EXs 84 and 154 are part of the Record on Appeal and have been transmitted to this Court by the Clerk of Superior Court.

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internet folders on Brad Cooper’s laptop computer that showed a map search beginning in the center of Cary which was then moved and enlarged until it was focused on the site off Fielding Drive where Nancy Cooper’s body was found. (Tpp. 6275-6311) The evidence presented by the State asserted that this search was done on the day before Nancy Cooper went missing, Friday, 11 July, 2008, at about 1:34 p.m.

To respond to the State’s claim that Brad Cooper did a Google Map search focused on the site where Nancy’s body was found on the day before she went missing, the defense planned to offer evidence that Brad’s computer had been tampered with, that the Google Map files on his computer had been inserted by someone else. The defense gave notice to the State that it planned to offer expert testimony from Jay Ward on this matter. He had been professionally employed for 18 years in computer network security.

When the defense case started on Tuesday, 19 April, Jay Ward was the first witness to be called. The trial court granted the state’s motion for a voir dire on his qualifications outside the presence of the jury. At the end of that voir dire, the trial court ruled that Ward’s testimony would be limited to computer network security, but granted the State’s motion to bar him from testifying about the analysis he did concerning the files extracted from Brad Cooper’s computer on the issue of whether there was evidence that the Google Map files were the result of tampering. (Tpp. 6909-7017)

After that ruling, the defense immediately began looking for

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an expert whose job description was computer forensic examiner to fill in the major hole in the defense case when the trial court ruled that Jay Ward could not give testimony about tampering on Brad Cooper’s laptop computer. First thing Thursday morning, the defense gave notice they were adding Giovanni Masucci to their witness list, a forensic examiner they located Wednesday night, to examine the data that the FBI extracted from Brad Cooper’s computer. (Rp. 474, Tpp. 7363-67) The defense sent his CV to the prosecutor on Friday (a day when court was not in session), and his report on Saturday. (Tp. 7600)

Masucci’s report (D EX 154) said that he examined the data that Jay Ward extracted from Brad Cooper’s laptop computer and the data that the FBI extracted from it. The two sets of data matched. The data obtained by Ward was verifiable. He endorsed all of the conclusions reached by Ward in his report given to the State prior to trial. He attached a copy of Ward’s report, redlining a few things about which he had no personal knowledge. He reported his conclusion that the Google Map files in the temporary internet folders on Brad Cooper’s computer were not created as the result of an organic and genuine internet search from that computer, that they were files placed on that computer from some other source.

When Court resumed on Monday, 25 April, the defense planned to call Masucci to testify. The State objected, claiming that the defense had violated the discovery statutes because Masucci’s

Defendant's Exhibit 154 was admitted as part of the offer of proof, is part of the Record on Appeal and has been transmitted to this Court by the Clerk of Superior Court.

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name was not on the defense witness list and the State had not been provided with his report prior to trial. The defense argued that the discovery statutes were not violated because they only called for names and reports of witnesses that the defense intended to call at trial. Prior to the ruling barring Jay Ward from testifying about tampering, the defense had no intent to call Masucci as an expert. The defense provided notice and a report as soon as was possible after that ruling. The defense argued that precluding testimony from a defense witness as a sanction was permissible only when the failure to disclose was done in bad faith. (Tpp. 7599-7621)

The trial judge granted the State’s motion, excluding testimony from Masucci, ruling that the defense had violated the discovery statutes. The trial court found that allowing the testimony would prejudice the State. The trial court made no mention of the effect of the ruling on the defense’s ability to present its evidence and made no mention or consideration of any alternatives short of exclusion. The defense objected that the ruling violated the Defendant’s state and federal constitutional rights. (Tpp. 7621-7624; App. 1-4)

The trial court delayed the defense offer of proof from Masucci until Thursday afternoon. At the end of that offer of proof, the defense asked the trial court to reconsider the ruling barring testimony from Masucci. The trial court denied that motion. (Tpp. 8300-8306)

The trial court’s ruling excluding testimony from Giovanni Masucci was error that requires reversal of the conviction and a

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remand for a new trial. There was no violation of the discovery statutes. Even if there had been, excluding this critical defense evidence rather than adopting some less onerous sanction deprived Defendant Brad Cooper of his constitutional rights to confront the State’s case and offer evidence in his defense.

  1. Controlling Law and Standard of Review.

A criminal defendant's due process right to present his defense puts constitutional limits on the use of preclusion of defense evidence as a sanction for violations of discovery rules.

The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies.  Just as an accused had the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he had the right to present his own witnesses to establish a defense.

Washington v. Texas, 388 U.S. 14, 19 (1967) (emphasis added).

Few rights are more fundamental than that of an accused to present witnesses in his own defense, see, e.g., Chambers v. Mississippi, 410 U.S. 284, 302 (1973). Indeed, this right is an essential attribute of the adversary system itself.

Taylor v. Illinois, 484 U.S. 400, 409 (1988)

As the Court noted in Taylor, 484 U.S. at 408, n. 13, the North Carolina Constitution combines the right to put on a defense with the right to confrontation. "In all criminal prosecutions, every person charged with a crime has the right to . . .confront the accusers and witnesses with other testimony . . . ."  N.C. Const., Art. I, § 23. The right of a criminal defendant to present his version of the facts to the jury is a fundamental element of due process. State v. Miller, 344 N.C. 658, 673, 477 S.E.2d 924

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(1996). See also Rock v. Arkansas, 483 U.S. 44, 51 (1987); Crane v. Kentucky, 476 U.S. 683, 690-691 (1986); Chambers v. Mississippi, 410 U.S. at 298-302.

Preclusion of the testimony of defense witnesses is not constitutionally permissible for every discovery violation. Alternative sanctions are "adequate and appropriate in most cases." Michigan v. Lucas, 500 U.S. 145, 152 (1991), quoting Taylor v. Illinois, 484 U.S. at 413. The right to present evidence supporting the defense is not absolute. Taylor addressed the issue of under what circumstances, if any, a court could constitutionally preclude the defense evidence as a sanction for a discovery violation, applying a balancing test which must take into account sanctions less onerous than exclusion and whether the violation was in bad faith and done for the purpose of gaining a tactical advantage.

Because the statutes do not require a trial judge to impose any sanction for a discovery violation, a decision by a trial judge about what sanction to impose is generally reviewed for abuse of discretion. The trial court’s findings of fact are binding if they are supported by evidence. The conclusions of law are reviewed de novo to determine whether they are supported by the findings and the evidence. State v. Moore, 152 N.C. App. 156, 566 S.E.2d 713 (2002). The question of whether a discovery violation actually occurred is an issue of law determined by an appellate court de novo. State v. Gillespie, 362 N.C. 150, 154, 655 S.E.2d 355, 358 (2008).

Precluding testimony of a defense witness as a sanction for a

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discovery violation raises the issue of whether the sanction is constitutionally permissible under the Taylor balancing test. Application of the Taylor balancing test is an issue of law which must be determined de novo on direct appeal.  United States v. Levy-Cordero, 67 F.3d 1002, 1013 (1st Cir. 1995). If an appellate court concludes that the preclusion sanction was too harsh under the Taylor test, the failure of a trial court to apply an alternative penalty is an abuse of discretion. See People v. Scott, 339 Ill. App. 565, 791 N.E.2d 89 (2003), leave to appeal denied, 339 Ill.3d 632, 893 N.E.2d 496 (2003).

  1. No Discovery Violation.

It was the State’s theory, and the trial court’s ruling, that the failure of the defense to provide the state with a report from an expert witness prior to trial and the failure to include his name on the witness list tendered at the beginning of the trial is always a violation of the discovery statutes. The theory is unsound and the ruling was in error.

N.C.G.S. § 15A-905(c)(2) provides that, “a reasonable time prior to trial,” a defendant is obligated to give the State notice of any expert witness and a report containing the expert’s opinions and the basis for them that the defendant “reasonably expects to call as a witness at trial.” N.C.G.S. § 15A-905(c)(3) provides that, “at the beginning of jury selection,” a defendant is obligated to give the State a written list of the witnesses that the defendant “reasonably expects to call during trial.” That statute goes on to say that, if there are witnesses that the defendant did not reasonably expect to call at the beginning of

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jury selection, on a showing of good faith, the trial court “shall permit the undisclosed witness to testify.”

These statutes are carefully drafted to leave room for the unexpected, the need that can arise to call a witness whose name was not on the defendant’s original witness list, including an expert that the defendant did not reasonably expect to call prior to the trial beginning. That need arose in this case, late in the trial.

Before trial and at the beginning of jury selection, the defense reasonably expected to call Jay Ward as an expert to testify that the data extracted from Brad Cooper’s computer showed that Google Map files in the temporary internet files were not created by use of that computer on 11 July, but rather that the computer had been tampered with and that those files were the result of said tampering. The defendant gave notice, supplied a report, and included Jay Ward’s name on the defense witness list. The trial then went on with the presentation of the State’s case in chief for about two months. During that time, nothing was said by the State about their intent to challenge Ward’s credentials as someone unqualified to give expert testimony about the data extracted from the computer that led to his opinion that Brad Cooper’s computer had been tampered with, that the Google Map files were not created on that computer by Brad doing a Google Map search at 1:15 p.m. on 11 July 2008.

When the defense finally got its chance to offer evidence, the first thing the prosecution did was to challenge Ward’s credentials, leading to a ruling that he would not be allowed to

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give testimony about evidence of tampering on Brad Cooper’s computer, whether or not it was testimony based on his opinion on data he extracted or data that the FBI extracted. Ward’s testimony, that he was now prohibited from providing ostensibly due to his not specifically being  a “forensic computer expert,” by job title, was the most important key to the defense case. The defense immediately scrambled to find an alternative. Within less than two days, the defense found an expert whose job title was specifically a “forensic computer” examiner who could analyze the data extracted from the computer by Ward and compare it to the data extracted by the FBI and make his determination about tampering. After reviewing that data, Giovanni Masucci came to the same conclusion that was reached by Ward, that there was tampering with Brad Cooper’s computer that related to the Google Map files left on his computer in the temporary internet files. (Tpp. 8252-81; D EX 154)

There was no discovery violation. The defense acted in good faith and had no reasonable expectation of a need to call Masucci as an expert until the trial court capriciously barred that testimony from Ward. Once that ruling was made, the defense took timely and appropriate steps to secure a qualified substitute witness. The trial court erred by ruling that there was a violation of the discovery statutes.

  1. Denial of Constitutional Rights.

Even if there had been a violation of the discovery statutes, under the balancing test of Taylor v. Illinois, the sanction of exclusion was a violation of Defendant Brad Cooper’s

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constitutional rights to have the jury hear his defense evidence. Taylor involved a statute that required the defense to disclose the names and addresses of witnesses the defense planned to call. On the second day of trial, defense counsel moved to amend his witness list to add a man who purportedly witnessed the crime. Counsel gave no address, claiming that he had been unable to locate the man. The following day, as directed by the trial judge, defense counsel produced the man that he said he hadn't been able to locate. The man testified he only saw events prior to the crime and that defense counsel had interviewed him at his house the week prior to trial. The trial judge refused to allow the witness to testify.

Taylor held that, to preclude defense evidence, a court must weigh "the fundamental character of the defendant's right to offer the testimony of witnesses in his favor" against "countervailing public interests." The Court identified as factors to be considered: "the integrity of the adversary[ial] process," "the interest in the fair and efficient administration of justice," and "the potential prejudice to the truth-determining function of the trial process." 484 U.S. at 414-415. The Court held that preclusion was constitutionally permissible regardless of whether prejudice to the prosecution could be avoided by alternative remedies when, as was true in that case, defense counsel engaged in willful misconduct motivated by a desire to obtain a tactical advantage which raised a strong inference that the excluded witness's testimony was perjured. 484 U.S. at 415-417.

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Courts applying the Taylor balancing test, have found a number of factors to be significant to the question of whether exclusion of defense evidence as a sanction for a discovery violation is constitutionally permissible. Although they are expressed in various ways by various courts, they generally require consideration of (1) the reasons for the failure to comply with the discovery requirements and, in particular, whether the late disclosure was a bad faith attempt to obtain a tactical advantage; (2) the degree to which exclusion of the evidence interfered with the criminal defendant’s right to offer testimony in his favor, i.e. the degree to which the excluded evidence was material or vital to the defense; and (3) the degree to which the late disclosure prejudiced the prosecution and, in particular, whether any prejudice could be remedied by means other than exclusion of the evidence.  See, e.g. Bowling v. Vose, 3 F.3d 559 (1st Cir. 1993), cert. denied , 510 U.S. 1185 (1994); United States v. Finley, supra; State v. Delgado, 174 Ariz. 252, 848 P.2d 337 (Ariz. Ct. App. 1993); People v. Scott, supra; Vasquez v. State, 868 N.E.2d 473 (Ind. 2007); Commonwealth v. Reynolds, 429 Mass. 388, 708 N.E.2d 658 (1999); State v. Thompson, 1996 Tenn. Crim. App. LEXIS 31 (1996), permission to appeal denied, 1996 Tenn. LEXIS 450 (1996).

As already noted, there was no finding and there was no evidence in this case to suggest that any violation of the discovery requirements by the defendant or his counsel were the result of any bad faith effort to obtain a tactical advantage. Exclusion of defense evidence is the appropriate remedy only when

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a failure to comply with discovery requirements is “willful and motivated by a desire to obtain a tactical advantage.”  United States v. Finley, 301 F.3d at 1018. Indeed, our Supreme Court has said that it will overturn a trial court’s decision not to exclude prosecution evidence as a sanction for a discovery violation only when there is "a showing of bad faith by the State in its noncompliance with the discovery requirements." State v. McClintick, 315 N.C. 649, 662, 340 S.E.2d 41, 49 (1986).
The excluded evidence was critical to the defense of the murder charge in this case. Up until the point where the evidence about the Google Map files on the computer was presented, the State had presented lots of witnesses but almost no evidence linking Brad Cooper even circumstantially to the crime. Evidence refuting the State’s claim that Brad Cooper did that map search on his computer, that the Google Map files on his computer were planted, was the key to the defense against the charge that he committed the murder. “Where the stakes are high, as they are in a murder case, preclusion is the last resort.” Commonwealth v. Reynolds, 429 Mass at 400, 708 N.E.2d at 667. 

While the need to protect the integrity of the discovery process is important, the need to find the truth is the paramount interest at stake in the criminal justice system. Other interests take precedence of truth-seeking only under the most compelling circumstances, and only to the extent minimally sufficient for their achievement.

State v. Cobb, 962 P.2d 944, 949-950 (Colo. 1998).

In this case, there is no finding, and there was no evidence, that the defense was acting in bad faith, for the purpose of gaining a tactical advantage, by hiding Giovanni Masucci until the

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defense evidence was being presented. The trial judge in this case never even made such an inquiry.  A remedy short of exclusion of the totality of the defense evidence on computer tampering could have eliminated any potential prejudice to the State. The State had the report containing Ward’s opinions, and the bases for them, prior to trial. On the issue of tampering with Brad Cooper’s computer that affected the Google Maps files, Masucci reached the same opinions, adopting Ward’s report. The State could not claim that they were un-prepared to deal with these opinions from Masucci as they were fully prepared to hear them from Ward. The State needed nothing else to be prepared for Masucci to give them, save for the change of name and credentials. If the State needed a brief recess, or perhaps a voir dire of Masucci out of the presence of the jury, it would have put the State in the same position they would have been if Ward had been the witness. These would have been adequate and appropriate remedies.

The trial court focused solely on the possible prejudice to the State, which was minimal at best, without giving any consideration of remedies less drastic than exclusion of the evidence that could have put the State in the same position it was prepared to be in, without any consideration of the complete lack of bad faith by the defense, and without any consideration of how critical this evidence was to the defense theory of the case. Under the totality of the circumstances, excluding the evidence entirely was a violation of Defendant Brad Cooper’s state and federal constitutional right to have the jury hear the defense evidence relating to the facts that were the center point of the

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jury’s determination of guilt or innocence.

The State cannot show that the error of excluding the defense evidence entirely was harmless beyond a reasonable doubt. For that reason, the conviction for first degree murder must be reversed and the case remanded to the trial court for a new trial.

  1. THE TRIAL COURT’S RULING THAT JAY WARD WAS NOT QUALIFIED TO GIVE EXPERT TESTIMONY ABOUT TAMPERING ON DEFENDANT BRAD COOPER’S COMPUTER WAS AN ABUSE OF DISCRETION AND DEPRIVED DEFENDANT COOPER OF HIS STATE AND FEDERAL CONSTITUTIONAL DUE PROCESS RIGHT TO PRESENT A DEFENSE.

Jay Ward was the witness the defense intended to present to offer his opinion that the information on Brad Cooper’s computer relating to the 42 second span in which Google Map files seemed to appear on the IBM hard drive was the result of intentional tampering. Ward was called as the first defense witness on Tuesday, 19 April 2011. The State challenged his credentials in a voir dire outside the presence of the jury. (Tpp. 6909-89)

Ward owned a business that provided services related to security of computer networks, including testing for penetration from an outside source. Before starting his business, Ward had been employed for more than 15 years in computer network security at a variety of corporations. Although not an expert in the forensic examination of computer, he had performed those functions on a number of occasions. He didn’t need to be a forensic expert to analyze the data that came from a forensic examination of computers. He had examined computers hundreds of times to determine if tampering was present. (Tpp. 6915-54; 6972-73, 6995)

In this case, Jay Ward was asked to determine if tampering

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had occurred with the Google Map files found in the temporary internet files on Brad Cooper’s computer. He started with a forensic copy of the hard drive created by the FBI forensic computer analysts. He made another forensic copy using a machine he got access to through a friend at Cisco. He then used various forensic tools, computer programs, to extract information from that copy. This was the data he analyzed to determine if tampering had occurred. The week prior to Ward’s testimony, the State turned over to the defense a copy of the data the FBI examiners extracted from the hard drive, the master file table [MFT]. Ward compared it to the data that he himself had extracted and the two datasets were identical. (Tpp. 6961-89)

At the end of the voir dire, the State argued that, because Ward’s experience in doing forensic examination of computer was limited and he was not specifically certified in the use of the forensic tools, the data he extracted from the hard drive was not reliable. The defense argued that he could testify to his conclusions based solely on data that the FBI had extracted. (Tpp. 6996-7007) The trial court ruled that Ward would be permitted to testify about the security of the computer network at the Cooper residence, but would not be allowed to testify about whether tampering had occurred on Brad Cooper’s computer because he was not a forensic computer analyst. The trial court also ruled that he would not be allowed to testify about tampering based on the data obtained by the FBI forensic analysts, because that would be testifying as a forensic analyst. (Tpp. 7007-7011; App. 5-9)

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The ruling that Ward could not give his opinion that tampering had occurred on Brad Cooper’s computer with the Google Map files was error. Because this evidence was so critical to the defense case, the error deprived Defendant Cooper of his constitutional right to present evidence supporting his defense.

  1. Standard of Review.

A trial court’s rulings on the qualifications of an expert or the admissibility of an expert’s opinion are reviewed on appeal for abuse of discretion." Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 458, 597 S.E.2d 674, 686 (2004)

  1. Analysis.

The determination of whether Brad Cooper’s computer showed tampering with the Google Map files has two stages. The first is the forensic preservation of the hard drive so the data can’t be changed and then the forensic extraction of that data from the forensic copy. The second stage is the analysis of that data. The State’s argument, and the trial court’s finding, was limited to the first stage, that Jay Ward did not do a reliable extraction of data. There was no challenge to his expertise on the second stage, analysis of the data. He was certainly more expert on analyzing data from a computer to detect tampering than the State’s witness. This had been a part of his professional work as a computer security expert for almost two decades.

North Carolina has a “three-step inquiry for evaluating the admissibility of expert testimony: (1) Is the expert’s proffered method of proof sufficiently reliable as an area for expert testimony? (2) Is the witness testifying at trial qualified as an

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expert in that area of testimony? (3) Is the expert’s testimony relevant?” Howerton, supra, 358 N.C. at 458, 597 S.E.2d at 686 (citing State v. Goode, 341 N.C. 513, 527-29, 461 S.E.2d 631, 639-41 (1995). There was no issue about the relevancy prong. The State admitted the evidence was relevant.
The first prong of this test, the area of the testimony, focuses on the reliability of the techniques used by the witness, not on the ability of the witness to apply those techniques. The techniques used by Jay Ward to extract data were the same as those used by the State’s forensic computer analysts, a machine to produce a write block image of the hard drive and application of forensic tools (computer programs) to extract the data. The State did not challenge the reliability of the techniques.

On the second prong of this test, whether Jay Ward was qualified as an expert with respect to the use of those techniques, the issue is not whether his knowledge, skill and experience was sufficient to make him a forensic computer analyst like the State’s witnesses. To be qualified as an expert in an area, it is not necessary that the witness be a specialist, hold a particular license or certified or formally trained. It is enough that the witness by result of his training, knowledge and experience is better able to form an opinion on the matter than a lay juror. Howerton, 358 N.C. at 461-462, 597 S.E.2d at 688. Jay Ward was certainly more qualified than the lay jurors to forensically extract data from the hard drive.

Even if there was any substance to the argument that Jay Ward was not qualified to forensically extract data from the hard

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drive, that flaw alone became moot once he was proffered as an expert on the analysis for the data extracted by the State’s own forensic computer analysts. The trial court’s ruling that only a forensic analyst can interpret data extracted by a forensic analyst is wrong as a matter of law as is clear from this Court’s opinion in Hamilton v. Thomasville Med. Assocs., 187 N.C. App. 789, 654 S.E. 2d 708 (2007), disc. review denied, 362 N.C. 681, 670 S.E.2D 232 (2008).

Hamilton brought suit against a neurosurgeon, claiming that he would not have suffered a stroke if the defendant had not failed to read a MRI that Hamilton was given. On the issue of standard of care, the plaintiff offered the opinions of a neurologist and an internist. Granting the defendant’s motion to strike their opinions, the trial court held they were not qualified to give opinions on standard of care, because they were not neurosurgeons. This court found that ruling to be an abuse of discretion, because they were in a better position than the trier of fact to have an opinion on whether the plaintiff would have suffered a stroke but for the failure of the defendant to read the MRI. A physician with no expertise in reliability in doing an MRI can certainly be qualified to interpret the data from an MRI. In the same manner, Jay Ward was certainly qualified to interpret the data extracted by the State’s forensic analysts on the issue of whether there was tampering from an outside source relating to the Google Map search.

It was error for the trial court to bar testimony from Jay Ward as to his opinion that the hard drive had been tampered with

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from an outside source, tampering that affected the Google Map files found on that hard drive. As noted in the preceding argument, because evidence went to a critical part of the defense theory of the case, the error deprived him of his state and federal constitutional right to present a defense.  The Google Map search allegedly done by Brad Cooper on the day before Nancy disappeared was the only evidence the State had that even remotely connected Brad to Nancy’s death.  The State cannot show the error was harmless beyond a reasonable doubt.

  1. THE TRIAL COURT’S DENIAL OF THE DEFENSE MOTION FOR PRETRIAL DISCOVERY OF THE FILES OF THE STATE’S COMPUTER EXAMINERS AND MOTION AT TRIAL PRODUCTION OF THE DATA CREATED BY THE STATE’S COMPUTER EXAMINERS IN SEPTEMBER 2008 AND FIRST DISCLOSED TO THE DEFENSE DURING TRIAL ON 13 APRIL 2011 WAS ERROR WHICH DEPRIVED DEFENDANT COOPER OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHT TO CONFRONTATION AND HIS DUE PROCESS RIGHT TO PRESENT A DEFENSE.

Prior to trial, the State gave to the defense in discovery an FBI report (later admitted at trial as SX 607) relating to the examinations by the FBI’s Computer Analysis and Response Team (hereinafter “CART”) of computers seized from the Cooper residence. The report listed in general terms what was done to extract data from the hard drives and described generally categories of files extracted from the computers and put onto CDs. One category the report said was located in Brad Cooper’s lap top computer was “several images from Google Map of the location/area where Nancy Cooper’s body was found. Images appear to be dated July 11.” No opinions were included in that report.

Before trial, the defense filed a motion to compel

State's Exhibit 607 in included as part of the Record on Appeal and has been sent to this Court by the Clerk of the Superior

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discovery. Several paragraphs of the motion related to the computers seized from the Cooper residence. They sought FBI policies and procedures on analyzing computers, all data obtained during the examination, technician bench notes related to the examination, and any opinions reached about the data found and the bases for such opinions. Paragraph H of that motion (Motion to Compel, pp. 15-18) specifically requested discovery of that information for the examination of Brad Cooper’s lap top computer.

In response, the State filed a motion seeking denial of those paragraphs of the motion to compel related to the CART examinations of the computers seized. (Rpp. 152-163) The State’s motion asserted the discovery sought was protected from disclosure by the work product privilege and a “law enforcement sensitive” privilege. Attached to the motion was an affidavit from the supervisory agent of the FBI’s digital evidence section. It asserted the materials sought were exempt from discovery under the “law enforcement sensitive” qualified evidentiary privilege. It asserted that disclosure of the material sought could lead to the development and use of countermeasures which would thwart the ability to obtain forensic digital evidence for the investigation and prosecution of criminal cases and counterterrorism investigations.

Following a hearing involving arguments of counsel on this issue on 27 August 2010, the trial court granted the state’s

The motion to compel was inadvertently omitted from the printed record. A motion to file an addendum to the record containing the

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request to deny the defense motion to compel discovery. The written order found that the requested discovery could defeat law enforcement’s ability to obtain forensic information in criminal cases and adversely affect national security. (Rpp. 171-172)

On 13 April 2011, the court day before the State rested its case, Durham Police Officer Chris Chappell, a member of the FBI CART team, offered opinions about how the Google Map files found in the temporary internet folder on Brad Cooper’s lap top were created. Those opinions were based on a test conducted by the CART team on 15 September 2008 which attempted to replicate the files found on the lap top. The test was conducted by doing a Google Map search on a computer which had been emptied of all temporary internet files to see what files were downloaded to that folder. Based on that test, Officer Chappell’s opinion was that the files were created by someone using that computer at 1:15 p.m. on 11 July 2008 while doing a Google Map search starting somewhere in Cary and then moving east on the map and zooming in until the final map image was centered on the location off Fielding Road where Nancy Cooper’s body was found. (Tpp. 6298-6311) His testimony was the first notice to the defense that the test was performed and of the opinions he offered.

On the court day after the State rested its case, FBI SA Gregory Johnson testified in voir dire that they still had the test data from the Google Map search test they performed in 2008. Asserting that a test of how Google Map functions could have no ramifications to national security, the defense moved for

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production of that data. The trial judge denied the motion, holding that it was covered by the pretrial discovery order dealing with computer information protected by privilege. The trial judge further ruled that the defense would not be allowed to question Agent Johnson about whether or why any national security issue would be created if that data was produced. (Tpp. 7041-46; App. 10-15)The data was not produced. There was no showing at trial that this data was protected by any privilege, work product or law enforcement sensitive, or that it could conceivably affect any issue of national security.

The trial court erred by denying the defense motion to compel discovery and the motion at trial for production of the test material data. Under the discovery statutes, production of this kind material was expressly required prior to trial. Under those statutes, work product privilege applies only to files or data created by the district attorney or members of his legal staff. There is no work product privilege for any materials collected or created by law enforcement. Any law enforcement privilege is limited to ongoing investigations, expires when the investigation is completed and a defendant charged, must give way to statutes requiring pretrial discovery. At trial, the privilege must give way to a criminal defendant’s constitutional right to confrontation and to present evidence supporting his defense.

  1. Standard of Review.

Whether the work product privilege bars the production of evidence is an issue of law determined by an appellate court de novo. State v. Bates, 348 N.C. 29, 497 S.E.2d 276 (1998). State

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v. Bates, 348 N.C. 29, 497 S.E.2d 276 (1998). Whether the “law enforcement sensitive” privilege bars the production of evidence is an issue of law determined by an appellate court de novo. United States v. Foster, 986 F.2d 541 (D.C. Cir. 1993).

  1. Work Product Privilege.

The State’s claim was that the work product privilege protected materials prepared by law enforcement for use at trial from production in pretrial discovery and at trial. As authority, the State relied on the decisions in State v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977) and State v. Heatwole, 344 N.C. 1, 23, 473 S.E.2d 310, 321 (1996).

The cases relied on by the State were written at a time when the statutes provided very limited pretrial discovery. Since they were written, there have been a series of enactments by the Legislature which greatly broadened discovery to, first for post-conviction matters in capital cases, then for pre-trial discovery in capital cases, and then for all criminal cases. Work product is a common law privilege which does not trump these statutes enacted by the Legislature as made clear by our Supreme Court in State v. Bates, supra.

Bates involved the first of these statutory changes, providing that in capital post-conviction cases, the State was required to provide to the defense the complete files of all law enforcement and prosecutorial agencies. The State claimed that the new statute did not require disclosure of materials covered by the common law work product privilege. Our Supreme Court held that the plain language of the statute requiring disclosure of

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the complete files “to the extent allowed by law” was intended to limit from disclosure only information that the State was expressly prohibited from disclosing by other statutes and provided no exception for work product.

At the time of this case, pretrial discovery was governed by N.C.G.S. § 15A-903 (2011), which sets out the material required to be disclosed, and N.C.G.S. § 15A-904 (2011), which sets out the material not subject to disclosure. 15A-904(a) provides work product protection for materials prepared by the district attorney or his legal staff, but no work product protection for anything prepared by law enforcement. 15A-903(a)(1) and (2) required pretrial discovery of the complete files of all law enforcement agencies, including the “results of tests and experiments” and required a report from all expert witnesses containing the results of any tests or experiments, their opinions and the bases for those opinions. Under the analysis of State v. Bates, there is no basis for work product protection of any material relating to the examination of the computers which was the subject of the motion to compel. There is no work product protection for anything in the files of the law enforcement agencies.

  1. Law Enforcement Privilege.

Federal courts and state court decisions in other jurisdictions have recognized a qualified privilege protecting against disclosure of sensitive law enforcement information that is involved in ongoing criminal investigations. As noted in United States v. Van Horn, 789 F.2d 1492 (11th Cir), cert. denied, 479 U.S. 854, cert. denied, 479 U.S. 854 (1986), these

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holdings are an expansion of the qualified privilege against disclosure of the identity of confidential informants that was the subject of the decision in Rovario v. United States, 353 U.S. 53 (1957). There, the Supreme Court held that the privilege must give way when the identity of the informant was “relevant and helpful to the defense of an accused, or is essential to a fair determination of the cause.” The Supreme Court held in that case that, because the confidential informant was a witness to the events that were the basis for at least one of the criminal drug charges against the defendant, the prosecution was require by due process to disclose his identity or dismiss the prosecution.

Like the work product privilege, this privilege against disclosure of “sensitive law enforcement” information is limited both by relevance and time constraints. It applies to information in files related to active criminal investigations, and expires when the particular investigation had become completed. Coughlin v. Lee, 946 F.2d 1152, 1159 (5th Cir. 1991); In re U.S Dept. of Homeland Security, 459 F.3d 565, 570-572 (5th Cir. 2006). In this case, even if there is some kind of “sensitive information privilege,” because the criminal investigation was over long before the trial, the information relating to the examination of the computers was no longer protected by any “law enforcement sensitive” privilege by the time of the order denying the defense motion to compel discovery.

More basically, insofar as the “law enforcement sensitive” privilege might exist in North Carolina, it, like the work product privilege, cannot apply if disclosure of the information

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is required by statute. N.C.G.S. § 15A-903(a)(1) and (2) (2011) required the State to provide in pretrial discovery all of the information in the files of the law enforcement agencies relating to the examination of the computers seized from the Cooper house, the results of all tests and experiments done relating to that evidence, all opinions about that evidence from expert witnesses and the bases for those opinions. There is nothing in N.C.G.S. § 15A-904 (2011) which protects any of this from pretrial discovery.

It was clearly error for the trial to deny the defense motion to compel pretrial discovery of all of this information. All of the information relating to the examination of the computers by the CART examiners should have been provided to the defense long before the trial began.
Even for information not required to be disclosed by discovery statutes, the “law enforcement sensitive” privilege must give way when the information sought is “relevant and helpful to the defense of the accused.” Information is relevant and helpful whenever it might be useful in the cross-examination of a key or critical witness for the prosecution. Failure to produce this kind of information is a violation of a defendant’s state and federal constitutional right to confrontation which requires reversal of a conviction. United States v. Foster, 986 F.2d 541 (D.C. Cir. 1993); State v. Harris, 819 So.2d 844, 2002 Fla. App. LEXIS 6605 (2002).

In this case, the evidence most significant to the prosecution, the Google Map files in the temporary internet folders and how they got there, came from the examination of

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Defendant Brad Cooper’s lap top computer by the CART examiners and the test they did in September 2008 to try to replicate them. Disclosure of this information was critical to Defendant Brad Cooper’s ability to conduct an effective cross-examination of the CART forensic computer examiners, Agent Johnson and Officer Chappell, who were the prosecution’s key witnesses. The trial court’s ruling denying disclosure of this information at trial was error which violated Defendant Brad Cooper’s constitutional right to confrontation. This is an error which requires reversal of his conviction.  Like the two previous issues, and particularly since Ward and Masucci were barred from testifying about the tampering of Google Map files, the State cannot show that this error was harmless beyond a reasonable doubt.

CONCLUSION

For the above and foregoing reasons, Defendant-Appellant Bradley Cooper respectfully requests that this Court reverse his convictions and remand the cases to the trial court for a new trial.
This the 5th  day of November, 2012.
Respectfully submitted,

Ann B. Petersen
Glover & Petersen, P.A.
1506 E. Franklin Street, Suite 100
Post Office Box 2868
Chapel Hill, North Carolina 27515-2868
(919) 942-6503

ATTORNEY FOR DEFENDANT-APPELLANT

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CERTIFICATE OF SERVICE AND FILING BY MAIL

I hereby certify that the original of the above and foregoing Defendant-Appellant's Brief has been filed by mailing same to Mr. John H. Connell, Clerk of North Carolina Court of Appeals, Post Office Box 2779, Raleigh, North Carolina, 27602, by depositing same in the United States Mail, first class postage prepaid. I further certify that a copy of the above and foregoing Defendant-Appellant's Brief has been served on counsel for the State, Assistant Attorneys General Daniel P. O’Brien and LaToya B. Powell, Department of Justice, Post Office Box 629, Raleigh, North Carolina 27602-0629, by depositing same in the United States Mail, first class postage prepaid.

This the 5th day of November, 2012.

Ann B. Petersen
ATTORNEY FOR DEFENDANT-APPELLANT