) Durham County
) No. 01 CRS 24821
vs. )
Defendant )






(See end of document)









Defendant was indicted for the first-degree murder of his wife. [R.p.5]. Defendant was tried by a jury before the Honorable Orlando Hudson, in the May 5,2003, Criminal Session of Durham County Superior Court. Defendant was convicted and sentenced to life in prison, and gave timely notice of appeal.

This is an appeal of right pursuant to N.C.G.S. §§ 7A-27(b) and 15A-1444(a) and Rule 4(a) of the North Carolina Rules of Appellate Procedure.


The standard of appellate review of the denial of Defendant's motion to suppress, presented as Argument I, is that the trial court's findings of fact are binding if supported by competent evidence, but conclusions of law are fully reviewable on appeal. State v. McArn, 159 N.C. App. 209, 582 S.E.2d 371 (2003).

The trial court's decision to admit evidence regarding the financial status of Defendant and his wife, the death of Elizabeth Ratliff, and Defendant's bi-sexuality, presented as Issues II, III and IV are reviewed for relevance with deference, and under Rule 403, for an abuse of discretion. State v. Wallace, 105 N.C. App. 498, 410 S.E. 2d 226 (1991).

The trial court's decision to overrule Defendant's objections to improper closing arguments, presented as issue V, is reviewed for an abuse of discretion. State v. Jones, 355 N.C. 117, 558 S.E.2d 97 (2002).


A. Introduction

In the early morning hours of December 9, 2001, Michael Peterson called 911 and reported that he found his wife, Kathleen Peterson, laying on the bottom of a flight of steps, still breathing. The person taking the call later testified that Mr. Peterson was hysterical. Mr. Peterson called a second time to determine if help was on the way. When EMT and firefighters arrived, they found Mr. Peterson trying to help his wife, who was laying on the lower portion of a flight of wooden steps. Mr. Peterson was distraught, and Mrs. Peterson appeared to be deceased.

Dr. Kenneth Snell, the medical examiner, examined Mrs. Peterson's body and found that she had several lacerations on the back of her head. After examining Mrs. Peterson's injuries, and the blood stains near her body, Dr. Snell came to a preliminary conclusion that she died as a result of an accidental fall on the stairs.

Police officers at the scene became suspicious of the circumstances of Mrs. Peterson's death because of blood stains in the area. After speaking with police, Dr Snell changed his opinion, and concluded that Mrs. Peterson had died from blunt force trauma. Defendant was indicted murder on December 20, 2001, only 11 days after her death and before the autopsy report was completed. The State ultimately proceeded on the theory that Defendant beat his wife with a fire-place tool known as a blow poke, which they claimed had been in the house prior to Mrs. Peterson's death but disappeared by the time the police arrived. Defendant presented evidence that the injuries were consistent with a fall on the stairs rather than a beating, and produced the blow poke. After a lengthy jury trial, and several days of deliberations, Defendant was convicted of first degree murder and sentenced to life in prison.

This appeal focuses upon the admission of evidence from a search of the Petersons' home, the admission of evidence relating to the death in 1985 of Elizabeth Ratliff in Germany, the admission of evidenced regarding the financial and job status of Defendant and his wife, the admission of evidence indicating that Defendant was bi-sexual, and improper closing arguments made by the State.

B. Evidence Regarding December 9, 2001

In December, 2001, Michael Peterson and his wife, Kathleen, lived in a large house at 1810 Cedar Street, Durham. Defendant was an author with several successful novels. Defendant was active in Durham politics, having run for mayor and the city council and was an outspoken critic of the Durham Police Department with a regular column in the Durham Herald. Kathleen Peterson had risen through the ranks at Nortel, and was a well compensated executive.

The marriage was the second for both; Defendant had two grown sons, Todd and Clayton, and had also raised the daughters of a deceased friend. Those daughters, Margaret and Martha, were college age in 2001. Kathleen Peterson also had a college age daughter, Caitlin.

At 2:40 a.m., on December 9, 2001, Defendant called 911. Ms. Allen, the 911 operator, later described Defendant as hysterical. [Tr. 5463]. Defendant stated that his wife had fallen down some steps and was unconscious. Only when questioned was Defendant able to state that there were 15 or 20 steps, and that his wife was still breathing. [Tr. 5458]. Allen immediately put out a call for EMS to respond to an unconscious person. [Tr. 5459]. Tonya Pearce, another 911 operator, received a second call from Defendant. Ms. Pearce needed to tell Defendant to calm down. [Tr. 5469]. He asked if help was on the way and said that his wife was not breathing. [Tr. 5465].

Sergeant Borden and Captain Dwight Pettiford, both of whom had served as a spokesperson for the police department, responded to the scene. [Tr. 5801-03] Borden testified that he knew that Defendant had written a regular column for the Durham newspaper, which was often critical of the Durham Police Department. [Tr. 5810] For example, Defendant wrote an article accusing the police of having a rate of unsolved crimes of 96%, [Tr. 5813], stating that "the whole reporting system is rotten, and there's a clear attempt on the part of the police to cover up horrendous crime in this town." [Tr. 5816]. Relations between the newspaper and the police deteriorated to the point that the police would not speak with the newspaper. [Tr. 5804]. In addition, the police were aware that Defendant had run for mayor of Durham. [Tr. 5811].

Paramedics Ron Paige and James Rose were the first persons to respond to Defendant's home, followed by a fire engine crew. [Tr. 4898]. The front door was open, [Tr. 4879] and there were drops of blood on the walkway leading to the house, and some smeared blood on the door. [Tr. 4814, 4974]. Rose testified that it is not uncommon for people who call 911 to be anxious about when help will arrive, and to walk out to meet the paramedics as they arrive. [Tr. 4816].

After entering the house and looking down a hallway Paige and Rose saw Defendant kneeling by his wife, apparently trying to help her. [Tr. 4880]. Defendant was audibly sobbing, and had a dazed stare.[Tr. 4769, 4775] Rose later wrote in his report that Defendant was "obviously very, very upset." [Tr. 4831]. Later, when Defendant was outside on a patio with his son, Defendant was too upset to provide even basic information, such as his wife's date of birth. [Tr. 4833-35].

Defendant was wearing shorts and a shirt, and had blood on his clothes. [Tr. 4790]. Kathleen Peterson was laying on her back on the bottom of a flight of wooden stairs. There were towels under her head, and shoes, socks and paper towels near her body. [Tr. 4777, 4978] Paramedics determined that there was no heart activity. [Tr. 4778]. Members of a fire engine crew entered the house shortly after the paramedics, including Captain Paschal. Captain Paschal noted that Mrs. Peterson had a significant amount of blood on the bottom of her feet, consistent with her standing in blood at some point. [Tr. 4948]. Sergeant Borden, who arrived at the scene that morning, testified that the blood on the waist of Mrs. Peterson's sweat pants was consistent with her sitting up at some point after she began to bleed. [Tr. 5883].

There was significant blood on the stairs near Mrs. Peterson's body, some of which was smeared on the floor and walls. [Tr. 4777]

The paramedics and fire crew testified that the blood, including the blood on Mrs. Peterson, appeared to be dry. [Tr. 4777; 4890-91; 4980] None of the first responders actually determined if the blood was dry. In reports written shortly after the events, which described the blood, the first responders failed to indicate that the blood was dry. [Tr. 4824; 4902; 4960]. When Mrs. Peterson's body was subsequently moved, her clothes were saturated with blood that was still dripping. Defendant's clothes were sufficiently damp that blood stains were transferred from his clothing when he sat on a couch in the room near the stairs. [Tr. 6453, 6665]. Defendant's son Todd enter the house shortly after the first responders. [Tr. 4767].

Other civilians also entered the house and went unescorted into the kitchen and patio area near where Mrs. Peterson had been found. The lack of control over the scene prompted Captain Paschal to tell the police officer at the front door to not let unidentified people simply walk into the house. [Tr. 4945]. Dan George later testified that he was met at the door by an unidentified woman, rather than a police officer, and that he was concerned about the lack of control over the scene. [Tr. 6700]. A woman who identified herself as a doctor entered and walked around without monitoring. [Tr. 4909, 5498-99]1. Ben Maynor, a friend of Todd Peterson, walked around the house, and was later found to be impaired.
[Tr. 5557] Christina Tomasetti and Heather Whitson, friends of Todd Peterson, were allowed into the house, as were unidentified neighbors. [Tr. 5610-11]. Corporal McDowell of the Durham Police Department arrived at the house at the same time as Officer Figueroa 2, while the paramedics were checking on Mrs. Peterson. Todd Peterson was holding his father in the room adjoining where Mrs. Peterson was found. [Tr. 5481-82]. Corporal McDowell later testified that even when Sergeant Wilkins and Officer Kershaw arrived, around 3:30 a.m., there were not enough officers to secure the scene. [Tr. 5542-44].

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

2 Officer Figueroa did not testify.

Defendant and Todd were allowed to handle Mrs. Peterson, and to move about the house and handle and move various items. For example, Todd Peterson removed a cordless telephone that was laying on the stairs near Mrs. Peterson's body. [Tr. 4841]. An outline in blood on the stairs corresponded to the shape of the telephone, consistent with the telephone being removed from damp blood. [Tr. 4844]. Nobody monitored where the blood-stained phone was placed. [Id.]. Defendant, wearing bloody clothes, and Todd Peterson, who had physical contact with his father and Mrs. Peterson's body, were not monitored to determine where they went in the kitchen area. [Tr. 4831]. Dan George observed one officer examining the bottom of his shoes, as if he had stepped in something, but never determined what had happened. [Tr. 6707].

After the police arrived, Defendant began to wash his hands in a sink in the kitchen, in view of the officers, but stopped as soon as he was requested to do so [Tr. 5580, 5607-08]. Defendant was walking back and forth "as if he didn't know what to do," [Tr. 5608], and appeared confused. [Tr.5606]. Defendant, Ben Maynor and Todd Peterson were told to go out onto a patio that adjoined the kitchen. [Tr. 5608]. Defendant was weeping and pacing out on the patio. [Tr. 6046]. Todd Peterson was then allowed to go into the kitchen to get a drink and a glass. [Tr. 5501]. A Diet Coke can, with a blood stain, was subsequently seized from a table on the patio; DNA analysis identified Defendant's DNA and Kathleen Peterson's blood. [Tr. 7478-79]. Blood stains were subsequently found on the kitchen cabinets that contained glasses. [Tr. 5777]. 3

3 These stains were never documented in any photographs. [Tr. 5863]. Agent Deaver, who testified that he saw the stain more than 12 hours after Defendant had left the residence, described the blood as appearing "bright red" and "fresh." [Tr. 8299].

Dan George arrived at the house at 3:07 p.m. [Tr. 6417]. Defendant was out on the patio. While George was leaving the area he saw Defendant come through the kitchen, where Officer Figueroa was standing. Defendant was "moaning and groaning" and went over the his wife's body, and put his arms around her. [Tr. 6424]. Todd Peterson tried to coax his father to let go of his wife, and had to physically lift his father away from her body. At this time, there was wet blood under Mrs. Peterson's body, and her clothing was still saturated with wet blood. [Tr. 6699-70] After Defendant was forcibly removed from his wife's body, he sat on a couch in the kitchen, transferring blood to the couch. [Tr. 6665].

Defendant, Todd Peterson and Ben Maynor were asked to go sit in a den area once it started to get chilly outside. [Tr. 5612]. Officer McCallop remained in the den to prevent the men from talking with each other, and testified that Defendant eventually sat at a computer in the den and checked e-mails and the internet. [Tr. 6052]. McCallop was relieved by Officer Hester, who testified that Defendant was visibly upset while in the den, and was writing on a pad of paper. [Tr. 6085]. Defendant would moan, cry, hold his hands to his head, and then walk around to compose himself. [Tr. 6088]. Defendant ultimately was asked to change his clothes, which were placed on a window sill in the den. [Tr. 6054] Officer Hester notified command that the clothes were on the window sill because he believed that they should not be left there, but they were not collected for four to five hours. [Tr. 6086-87].

Dr. Snell, the medical examiner, arrived at the house at 7:40 a.m. [Tr. 7598]. Dr. Snell learned that there was a female who may have fallen down some stairs, but that the officers were concerned by the amount of blood. [Tr. 7595]. Dr. Snell examined Mrs. Peterson, noted a number of lacerations and an avulsion, and discussed the blood stains with one of the officers who indicated that they had been trained, but not certified, in blood stain analysis. [Tr. 7597-98]. Dr. Snell informed George and Campen that there were three or four visible injuries. [Tr. 6451, 7013]

Dr. Snell was told that the scene had been processed, [Tr. 7673] and walked up the stairs, along with a technician and detective, to check for blood stains other than on the bottom set of steps, but did not find any further stains. [Tr. 7596, 7683]. Dr. Snell and four to five of the officers then rolled Mrs. Peterson on to her side and examined the lacerations on the back of her head. [Tr. 7597, 7675]. Dr. Snell testified that he had blood on his gloves after examining Mrs. Peterson, which was about five hours after Defendant called 911. [Tr. 7682]. Dr. Snell testified that he was concerned that handling Mrs. Peterson at the scene might magnify her injuries. [Tr. 7605, 7680-81] 4 By the time Dr. Snell arrived at the scene, someone had moved the blood saturated towels from under Mrs. Peterson's head to the stairs leading to the kitchen. [Tr. 7674-75].

4 Dr. Snell testified that Defendant would likely have his wife's hair in his hands if he had handled her in a way that might have affected her injuries. Dr. Snell was unaware before trial that Defendant had been pulled from the body and that the Diet Coke can, from which Defendant drank, had Mrs. Peterson's hair on its surface, indicating that Defendant indeed did have his wife's hair on his hands after handling her body. [Tr. 7681- 82].

With knowledge of the suspicions of the police, Dr. Snell wrote in his report that "[i]t appears that she hit her head on the step above the corner and then hit the floor in the corner of the stairs" and that "[b]lood spatter appears to support the scenario." [Tr. 7631]. Dr. Snell also told the officers that, although it appeared to have been a fall, they should look for some type of instrument that may have caused the lacerations. [Tr. 7598].

The next day Assistant Commander Connie Bullock called Dr. Snell. Bullock was aware that Dr. Snell had indicated that the death was possibly due to a fall down the stairs; Bullock told Snell what the police believed happened, and Dr. Snell then said that the death might be due to something other than a fall. [Tr. 6269-71]. Dr. Snell later attended portions of the autopsy, but did not perform the autopsy. After Defendant had been indicted, Dr. Snell wrote an addendum to his report indicating that the death was consistent with a beating, rather than a fall. [Tr. 7634-35].

C. Search and Processing of Defendant's Home

The police ultimately obtained two search warrants to search Defendant's residence. 5

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

The first warrant was based upon the following showing of probable cause to believe a crime had been committed:

This applicant has been a law enforcement officer for more than 19 years. I am currently assigned to the Homicide Unit of the Criminal Investigation Division of the Durham Police Department. I have been an Investigator with the Durham Police Department since 1989. During this time I have been assigned to conduct follow-up investigations of Child Sexual Abuse, Adult Rape, Aggravated Assault and Homicide.

On December 9, 2001, 0309 hrs., I, Inv. A.H. Holland Jr., was paged by On-Call CID Supervisor Sgt. Fran Borden in reference to a Death Investigation at 1810 Cedar St.

Sgt. Borden advised that the victim, age 47, fell down a flight of stairs and there was a large amount of blood present at the scene. At 0359 hrs., this investigator arrived at 1810 Cedar St. Prior to entering the front door, I observed blood on the sidewalk that leads to the front door. Upon entering the front door, I observed blood on the inside of the door. Sgt. Terry Wilkins advised that the victim's husband had blood all over his person. I saw the victim as a distance, but did not approach. At this point, this investigator made the decision to obtain this Search Warrant.

[R.p. 29]. Based upon this showing, the warrant authorized officers to search for and seize the following property:

Fingerprints, bloodstains, fired and unfired bullets and casings, any and all other weapons, footwear impressions, trace hair and clothing fibers, physical layout of the premises, measurements of the premises, moving pictures, video, and still pictures to preserve the nature of the crime scene; documentary evidence indicating ownership, possession and control of the premises; and any and all evidence that may relate to the Death Investigation.

[Id.]. Sgt. Paschall later testified that the search warrant imposed no limits on what the police could search for. [Tr. 5975]. After this search warrant was obtained, investigators walked through the house looking for any instrument that could have been used to inflict the injuries. [Tr. 5945]. Later that day George and Campen began processing the house, with ID technician Angie Powell taking photographs. [Tr. 6445].6 The scene was initially videotaped and photographed. According to George, Dr. Snell was brought to the scene before any further processing took place. [Tr. 6448-49]. At the time Dr. Snell examined Mrs. Peterson, her sweat pants were still dripping blood. [Tr. 6465-66]. After Dr. Snell examined Mrs. Peterson, her body was removed from the scene. [Tr. 6455].

6 Powell was new and was assigned by Campen to photograph the scene as part of her training. [Tr. 7002]. Significant items, such as blood stains near kitchen cabinets, were not photographed, [Tr 10143], and obvious differences between photographs of the same areas were claimed to be "glitches" in the photographs. [Tr. 6827].

George then collected Defendant's clothing from the window sill for, and Todd Peterson's clothing, which he had been wearing. [Tr. 6459]. George put all of Defendant's clothes into a single paper bag to be transported to the police station for drying, although blood on the clothes was moist. [Tr. 6468]. Todd Peterson's clothing was similarly packaged. [Tr. 6469] George testified that this was not proper collection procedure. [Tr 6888- 89] The stains on the clothing were not documented before the clothing was folded and placed in a single bag. The S.B.I. initially refused to process the clothing because the stains were transfer stains. [Tr. 6897].

Campen requested assistance in blood stain interpretation from the S.B.I. Agent Deaver arrived at the house around 5 p.m.. By the time Deaver arrived, approximately ten police officers had been in and out of the house. [Tr. 6028-29]. After reviewing photographs that had been taken and processed, Deaver began examining the blood stains in the staircase. During a break in his work, Deaver and Campen went into the kitchen area and smelled an odor of alcohol in the sink. [Tr. 7028]. Campen was able to lift a fingerprint, later identified as Defendant's, from one of two wine glasses near the sink glasses. [Tr. 7029, 7388]. Deaver then processed a wine bottle that was on the counter for the presence of blood by rubbing a filter paper a over the surface. There was no blood on the bottle. [Tr. 7029]. Agent Deaver then recognized that processing the wine bottle in the manner removed any finger prints and was a mistake. [Tr. 7097]. Campen also processed the Diet Coke can that was found on the patio, and removed several hairs consistent with Mrs. Peterson from the can. [Tr.7033, 7497-98]. Partial fingerprints in the blood stains near Mrs. Peterson's body could not be identified. [Tr. 7113; 7396].

Campen performed luminol testing at the top of the stairs, and near where Mrs. Peterson's body was found. The luminol testing at the top of the stairs revealed some reactions near the top landing. [Tr. 7026]. This was the location of the linen closet, and the area where Dr. Snell and the others had previously walked. In addition, during the evening of December 10, George and Campen performed luminol testing on the floor of the kitchen and adjoining rooms, including the laundry room. The luminol testing was done after the police had been in the house for 36 hours. [Tr. 6744]. No attempt was made to photograph the luminol, although the police could take such photographs. [Tr. 6525-26]. No contemporaneous diagram was made of the location of the reactions. The officers claimed that they saw bare foot prints in the kitchen, leading to the laundry room and then back into the kitchen and stopping in the kitchen, going by the refrigerator and a sink in the kitchen. [Tr. 6529] George described what he saw as being similar to "a rabbit path" once the luminol was sprayed away from Mrs. Peterson's body. [Tr. 6717]. George explained that it was just "track over track" and that "I just couldn't distinguish it because there had been too much walking." [Tr. 6716]. No blood was found in the sink in the laundry room, or in the washing machine nor on a mop and bucket that were examined. [Tr. 7458] This room also served as a storage room for soft drinks and wine. [Tr. 6697].

On December 10th, the police conducted an extensive search of the interior and exterior of the house. The search was preceded by a briefing in which the officers were asked what they believed made a stain depicted in a photograph. [Tr. 5957]. Officer Hall testified that he believed that the stain showed an instrument with a long handle and was made by a tire tool or fireplace tool. [Tr. 6106]. Hall had not been told that the photograph in fact depicted a stain that was about an inch long. [Tr. 6121]. Approximately 30 officers, in five search teams, searched outside the house. A group of homicide investigators were assigned to search the interior of the house. [Tr. 5958, 5967]. No weapon was found, nor any indication that someone with blood on them left the property, walked out of the house, or down into the basement. [Tr. 5974-75].

During the search of the house on December 10, numerous items were seized that were placed into evidence. These items included blood and hairs that were collected from the bottom steps of the stairs, [Tr. 6505; 6595-6603]7, socks and tennis shoes found near Mrs. Peterson, [Tr. 6561]; a watch collected from Defendant [Tr. 6564]; wine glasses and bottles from the kitchen [Tr. 6577- 78]; paperwork collected from Defendant's den [Tr. 6581]; and a blood swabbing from the kitchen cabinet [Tr. 6594].

7 Agent Gregory testified that hairs found in Mrs. Peterson's hands were consistent with Mrs. Peterson's own hair [Tr. 7498] as were hairs found on the steps. Some of the hairs appeared broken. [Tr. 7499]. Gregory testified that a blow poke, or hitting a stair, could cause that damage. [Tr. 7502]. Gregory did not note any charcoal residue, such as might be left by a fire place tool. [Tr. 7520]. Gregory testified that a hair hit with a rounded edge would more likely be crushed than cut. [Tr. 7518].

Despite the extensive processing of the scene, numerous significant items were not seized. These included the cordless telephone that had been removed from the stairway by Todd Peterson, eye glasses that were on the stairs, sandals that Mrs. Peterson had been wearing, which were found next to her body, the towels that had been under her head, and keys that were in the door through which the police entered the house. [Tr. 6487, 6496,] George testified that he did not collect the eyeglasses because there were no stains on them. [Tr. 6496].8 Sergeant Paschall testified that the keys and glasses should have been seized, [Tr. 6013], while George admitted that the telephone should have been collected. [Tr. 6501]

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

After releasing the house to Defendant, the police obtained another warrant on December 12, 2001, authorizing them to return and seize further items, in particular computers. The application contained the same description of Detective Holland's experience as the prior warrant. The entire remaining showing in support of this search warrant was as follows:

On December 9, 2001, 0309 hrs., Inv A.H. Holland Jr., was paged by on-call Supervisor Sgt. Fran Borden in reference to a Death Investigation at 1810 Cedar St. Sgt. Borden advised that the victim, age 47, fell down a flight of stairs and there was a large amount of blood present at the scene. At 0359 hrs., this investigator arrived at 1810 Cedar St. Prior to entering the front door, I observed blood on the sidewalk that leads to the font door. Upon entering the front door, I observed blood on the inside of the door. Sgt. Terry Wilkins advised that the victim's husband had blood all over his person. I saw the victim at a distance, but did not approach. After conferring with the District Attorney's Office and the State Medical Examiners Office, this applicant has probable cause to believe that additional evidence remains at the residence.

Based on the factual information in this affidavit, applicant prays that a search warrant be issued. [R.pp. 43-44].

Based upon that affidavit, the search warrant authorized the seizure of the same items as were listed in the prior search warrant, and added:"[e]vidence to be seized shall include computers, CPU's, files, software, accessories, and any and all other evidence that may be associated with this investigation." [R.p. 43]. Officers seized two computers from the second floor of the house and a computer from Defendant's study. [Tr. 6605]. The computers were later searched by a private firm, CompuSleuth, hired by the State, with no further authorization for this procedure sought by the State. [Tr. 7769] During the trial, the State introduced evidence regarding e-mails, images and web-sites that were visited as a result of the search of the computer taken from Defendant's study. [Tr. 7853 et seq.]

Prior to trial, Defendant moved to suppress the evidence seized pursuant to these search warrants. [R.p. 6, 47]. The court denied the motion to suppress, [R.p.56], overruled Defendant's continuing objection to the introduction of the fruits of the searches at trial, [Tr. 6464], and overruled Defendant's renewed motion to suppress when it appeared that the computer hard drives had been subject to a further search by CompuSleuth. [Tr. 7762-63].

D. Evidence Regarding Activities of December 8, 2001

Kathleen Peterson was an executive at Nortel Networks in Research Triangle Park. Helen Prislinger, who worked for Nortel in Canada, reported to Mrs. Peterson. [Tr. 5200]. Ms. Prislinger was aware that Mrs. Peterson was planning on traveling to Canada for a meeting on December 10, 2001, and was going to make some time to meet with Ms. Prislinger. Ms. Prislinger spoke with Mrs. Peterson on Friday, December 7, and Saturday evening, December 8. [Tr. 5206]. Ms. Prislinger then left a message with Mrs. Peterson on Saturday evening about a planned conference call for the next day. Mrs. Peterson called back at around 11:00 p.m. [Tr. 5207]. When Ms. Prislinger needed an e-mail address for Mrs. Peterson, Mrs. Peterson asked Defendant for his address and relayed the information to Ms. Prislinger. [Tr. 5210]. During this conversation, Mrs. Peterson sounded normal; there was no indication that she was under stress or fighting with anyone [Id.; Tr. 5214]. Ms. Prislinger then sent an e-mail to this address, with attachments for Mrs. Peterson's review. [Tr. 5211]. The witness who examined the computer testified that the attachment had not been opened, and that it was very likely that Mrs. Peterson did not read the e-mail. [Tr. 7961]

Mrs. Peterson did not work on Friday, but spent time working on Saturday. Donald Hepp, supervised by Mrs. Peterson, testified that she was working during Saturday afternoon, and came by and spoke with him before leaving the office. Mrs. Peterson discussed Christmas shopping, and asked for directions to a local shopping mall. [Tr. 5448]. The conversation was pleasant, and involved joking about how much shopping they had left to do. [Tr. 5452]. The defense presented the statement of Christina Tomasetti to the police regarding her contact with Defendant and his wife that night. Ms. Tomasetti informed the police that she came by the residence Saturday night to get Todd, and that Defendant and his wife were drinking wine and watching a movie. When she and Todd left for a party at 10:20 p.m., Defendant and his wife were in good spirits. She drove Todd home and arrived just as the first responders were entering the house. [Tr. 11585-87].

E. Evidence Regarding Financial Condition and Job Status

The State sought to present extensive evidence regarding the Petersons' financial status in 2001, and Mrs. Peterson's job status at Nortel. Defendant filed a motion in limine to preclude the introduction of this evidence as any claim that Defendant murdered his wife for financial reasons was nothing more than speculation, and as the evidence was not relevant to showing Defendant's state of mind. [R.p. 190]. The court denied Defendant's motion. [Tr. 4635-4648]. Over Defendant's objection, the court allowed the State to introduce extensive evidence about the atmosphere at Nortel in general, Mrs. Peterson's job status specifically, and about the general finances of the Petersons. 9

9 Defendant was granted a continuing objection as the witnesses to these issues were called, [Tr. 5021; 5117] as well as raising specific objections to specific areas of evidence. See, i.e., [Tr. 5122-125].

Prislinger and Hepp, testified over objection to the general down-sizing at Nortel, and their own feelings about the security of their jobs. [Tr. 5202-06; 5436-46]. In addition, over objection, the State presented testimony through Kim Barker that Mrs. Peterson had briefly been put on an "optimization list," which was a euphemism for a list of those who were being considered for lay offs. [Tr. 5122]. Although Ms. Barker, who worked in human resources, was aware that Mrs. Peterson was on the list for three days in November, and then removed, [Tr. 5123-24] , Nortel had a policy of keeping the list confidential. [Tr. 5125]. Ms. Barker had expressed the opinion that there was absolutely no way that Mrs. Peterson would have known she had ever been on the list. [Tr. 5127]. No evidence was presented that either Mrs. Peterson or Defendant were ever aware of her short tenure on this list.

Katherine Kayser, also employed at human resources at Nortel, testified concerning Mrs. Peterson's career and benefits while working at Nortel. In 2001, Mrs. Peterson was earning $145,000 a year. [Tr. 5025]. Ms. Kayser detailed Mrs. Peterson's stock options. [Tr. 5026-5033]. Mrs. Peterson also had a 401(k) plan, a pension plan, a deferred compensation plan and life insurance through her job. [Tr. 5036].

Upon Mrs. Peterson's death, Defendant received net payments of approximately $29,000 from the 401(k) plan, $94,455 from the pension plan. [Tr. 5040, 5053]. In addition, Mrs. Peterson deferred 80% of her earnings for 2000 and 2001, which she lowered to 10% at the end of 2001, thereby deferring tax liability. By the time of her death Mrs. Peterson had deferred $223,000 in income. [Tr. 5051] Mrs. Peterson was also covered by life insurance, which paid a total of $1,450,000. [Tr. 5058] Defendant was the beneficiary of these benefits. Mrs. Peterson was initially hired by Nortel as a technical writer, making $33,000 a year. [Tr. 5065]. Mrs. Peterson consistently received raises, and in 2001 - while Nortel was going through tough economic times - received a $10,000 success bonus. [Tr. 5074].

On cross-examination, Mrs. Kayser explained that it was not unusual for the spouse to be designated as the beneficiary, and in fact federal law requires that the spouse be the beneficiary unless the spouse waives their rights. [Tr. 5092]. In addition, taxes were paid on the 401(k) and pension plan payments, and were due on the deferred compensation [Tr. 5093]. Mrs. Peterson exercised only a small number of stock options, although she was free to exercise the options when they were profitable had she needed or wanted the money. [Tr. 5084, 5092]. While the stock dropped from a high of approximately $80 a share in September of 2000, closing at $5.85 a share on November 1, 2001, it increased by roughly 50% to $8.84 by December 7, 2001. [Tr. 5082].

Had Mrs. Peterson been terminated, she would have been entitled to approximately $75,000 in severance, and would have been able to withdraw her accumulated deferred compensation over a five year period. [Tr. 5103]. Mrs. Peterson could also access her 401(k) and pension plan money if need be. [Tr. 5100]. Upon Mrs. Peterson's death, Defendant and the three girls all lost their health insurance benefits. [Tr. 5094].

The State also was allowed to present over objection the testimony of S.B.I. Agent Young, who testified as a summary witness about various financial records regarding the Petersons.[Tr. 5150]. Young based his summary on records he obtained, such as bank records, real estate records and records from Nortel. Over objection, Agent Young was also allowed to rely on an Equifax credit report. [Tr. 5237-39]. Agent Young summarized what he claimed were the values of various assets held by the Petersons, either individually or jointly, reviewed their credit history and analyzed what he viewed as income and expenditures.

Agent Young was first asked to perform the financial analysis in April, 2003, shortly before jury selection began. According to Young, the weekend that Mrs. Peterson died, their joint net worth was approximately $1,500,000. [Tr. 5286]. This figure did not include the remaining $49,000 in Mrs. Peterson's stock options, nor did it include the value of automobiles, art or antiques. [Tr. 5289-91]. Although the Petersons owned substantial real estate, Young relied upon tax values rather than the appraisals that Defendant had furnished to the State, although those had been provided to Young. [Tr. 5369-71]. Using the appraised values increased the net worth of the Petersons to over $2,000,000. [Tr. 5419].

Young testified that the amount of "normal income" that went into the Peterson's accounts for 1999, 2000 and 2001, was exceeded by the amount of money that they spent. [Tr, 5244]. For example, in 1999, $276,790 went in, while $461,400 went out. [Tr. 5241-42]. Young conceded that the negative figures for 2000 and 2001 were more than offset by the amount of deferred income that Kathleen Peterson had accumulated . [Tr. 5367]. Young admitted that he excluded from his definition of normal income the value of stock options exercised by Mrs. Peterson, although these options were compensation for Mrs. Peterson's work, and treated as taxable income. [Tr. 5307].

Similarly, Agent Young included the $5,000 cost of stock purchased by Defendant in 1999 as an expenditure, but excluded the proceeds from the sale of that stock for $11,000 from income. [Tr. 5307-08]. Agent Young also testified that he included all outgoing payments, including a repayment of a $35,000 loan, [Tr. 5312], charitable contributions, and college expenses the girls. Young conceded that there was nothing unusual about using assets or savings to pay for college. [Tr. 5312] Although Young knew that Defendant was a published author, he did not investigate Defendant's earnings prior to 1999, and claimed to be unaware that Defendant earned over $1,000,000 for his first two book contracts.
[Tr. 5300].

Young testified that, based upon an Equifax report, as of the time of Mrs. Peterson's death, the couple jointly had $142,000 in credit card and installment debt. [Tr. 5259]. Although Young was aware that this was a reduction in the amount of installment and credit card debt from the previous year, he did not disclose this until questioned on cross-examination. [Tr. 5327]. In early 2001, when the debt was higher, Kathleen Peterson could have realized over $700,000 in income from exercising her stock options. [Tr. 5335]. Instead, the Petersons refinanced their main residence, at a lower interest rate, that allowed them to borrow money while reducing their monthly payments. [Tr. 5339]. Young conceded that there was no evidence that the Petersons did not pay their bills on time. [Tr. 5322] 10

10 The State also presented e-mails, seized during the search of the computer, in which Defendant discusses with his first wife his sons' credit card debt, [Tr. 7865], asks Martha's Uncle to assist with her college tuition, [Tr. 7858], and discusses the stress for his wife of working at Nortel. [Tr. 7856]. Candace Zamperini was also allowed to recount statements by Mrs. Peterson in the Spring and Fall of 2001 regarding the stress at Nortel and the falling stock prices, and the cost of various repairs to the house. [Tr. 10551-566]

Finally, the State presented the testimony of John Huggard, who teaches finance and law at North Carolina State University in the Department of Business Management, who reviewed with the jury the law governing intestate succession, as Kathleen Peterson died without a will. [Tr. 6302 et seq].

F. Evidence Regarding The "Missing" Blow Poke

The police never found any instrument that they contended was the actual murder weapon. Undeterred by the absence of a weapon, the State proceeded on the theory that Defendant beat his wife to death with a fire place instrument with a hollow handle known as a blow poke. This theory was based on evidence that Kathleen Peterson's sister, Candace Zamperini, had given Mrs. Peterson, and other family members, blow pokes as presents. [Tr. 10539]. Ms. Zamperini testified that she had seen the blow poke at the Cedar Street residence when she visited in 1999, but had not been in the house since that time. [Tr. 10541; 10549].11 Officers testified that they did not see an instrument such as the blow poke in the house when they searched following Mrs. Peterson's death. The State contended, in its opening statement, that the blow poke was "mysteriously" gone when the police arrived on December 9th, 2001. [Tr. 4687].

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

In fact, a number of photographs taken in the house before Mrs. Peterson's death showed the fireplace, and did not show the blow poke. Claude Anderson, who did clean up work inside and outside the house, testified that he had not seen the blow poke in the house during the time he worked there. [Tr. 12192]. During the trial, John Rosenthal, a photographer, photographed a blow poke covered in cob webs and dead insects in the back of a darkened garage area. [Tr. 12296].

Subsequently it was confirmed that this blow poke was identical to the blow pokes given by Ms. Zamperini to other family members. [Tr. 12896] Dr. James McElhaney, a profession of biomechanical engineering at Duke University called by the State, testified that the force to inflict the injuries on Mrs. Peterson would have permanently bent the blow poke. [Tr. 12468]. The blow poke was not damaged. The State subsequently argued that they did not have to prove that the blow poke was used. [Tr. 13243]

G. Expert Testimony Regarding Blood Stains and Forensic Pathology

I. Blood Stain Evidence

The State relied heavily upon Agent Deaver, who testified to his opinions of the significance of the blood stains found in and around the stairway, and found on clothing and shoes. By the time Deaver viewed the stairway, Dr. Snell had walked up and down the stairs, Ms. Powell had been in the stairway to take photographs, Defendant and his son had been in physical contact with Mrs. Peterson's body, and the EMT's had removed the body, which was still saturated with dripping blood. Deaver based his opinions on his experience, measurements and calculations that he did at the scene, and a series of tests that he performed, and which were videotaped.

Deaver testified that there that several small stains on the header opposite the stairs were somehow related to stains found on stair 15. 12 Deaver testified that, in his opinion, these stains were cast off of some instrument being swung from outside the stairway through the door into the stairway. [Tr. 8744-45]. Deaver stated that he looked for strike marks on the walls, which would be consistent with a weapon being swung in that area, and found none. [Tr.8747]. On cross-examination, Agent admitted that his initial report did not indicate that he believed that the stains were cast-off, and that he did not come to this conclusion until long after he viewed the scene. [Tr. 8882-83]. Deaver conceded that there was no cast-off on the ceiling above where he contended Mrs. Peterson was struck.[Tr. 8942-43]

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

Deaver testified that blood stains on step 16 were consistent with Mrs. Peterson's head striking the surface of the stair, which he could determine was not the result of an accidental fall. [Tr. 8754]. According to Deaver, the surface of step 17 had been cleaned, but remaining blood stains on the riser were evidence of an impact. [Tr. 8756]. The steps at the top of the stairs had stains that reflected that someone walked to the top of the stairs after having blood on their feet. [Tr. 8758]. Deaver had not been aware that Dr. Snell and others had walked up and down the stairs during the early morning hours. [Tr. 10147]

Deaver explained that he selected specific blood stains on the north and east walls at the bottom of the staircase and the west wall running along the stairs , and using strings and estimating angles, identified precise points of origin that were away from the floor and walls, and from this determined that blows had been struck while Mrs. Peterson's head was located in these positions. [Tr. 8635-37, 8736]. On cross-examination, Deaver conceded that there is an element of subjectivity to determining a point of origin from blood stains, such as selecting and measuring the stains used for the analysis. [Tr. 9275-80]. Deaver also testified that actions other than a blow can cause cast-off and blood spatter, such as a moving hand, finger or hair. [Tr. 9002]. Impact spatter can be created from any object, such as a moving head or even other blood falling into blood. [Tr. 9003-04]. Deaver also identified an void area on the north wall, where there was no blood, and testified that this area had been cleaned, based on run marks from a liquid at the bottom of the void. [Tr. 8742-43]. Deaver conceded on cross-examination that his original notes from the scene did not indicate that there was a clean up on this wall, but rather was a shadow , or an area in which an object had blocked the blood stains. [Tr. 9088-89]. 13

13 Deaver also conceded that he made the observations about run marks when he returned to the scene in June, 2002, and that it was obvious that liquid had been applied to that wall since December 9. [Tr. 9091-93].

Deaver agreed that the blood stains on Mrs. Peterson's feet indicated that she stood up after she began to bleed. [Tr. 8748]. Stains on the doorway leading into the stairs and near the floor, showed hair transfer that was consistent with Mrs. Peterson's head coming into contact with the door jamb. The stains also were consistent with Mrs. Peterson's hands coming into contact with this area. [Tr. 8318, 8750].

Deaver also examined the clothing taken from Defendant, his son Todd, and Mrs. Peterson. Deaver testified that sneakers, found near Mrs. Peterson's body, had stains that indicated that blood had come from a source above the shoes. [Tr. 8761].14 Defendant's shorts had stains that Deaver testified were the result of impact spatter, and then the application of water to the front of the shorts.15 [Tr. 8759-60]. Deaver testified that Defendant's shirt's color was too dark for visual examination of any stains. [Tr. 8375].

14 Deaver testified that he stomped in a small amount of blood to determine that these stains could not come from someone wearing the shoes and walking on blood [Tr. 8661]. The tests did not take into account someone stepping on blood on surfaces of different heights, such as the stairs. [Tr. 9031] In addition, Deaver had not been aware that the shoes were near Mrs. Peterson's body when it was moved from the scene, while still dripping blood. [Tr. 9026]

15 Agent Bendure, who examined the shorts, testified that several small stains found several centimeters from the hem of the shorts were cause by blood coming into contact with the inside of the shorts. [Tr. 8105], meaning that the leg of the shorts was open at the time the blood was deposited. [Tr. 8123 ].

During cross-examination, the defense was for the first time provided a report revealing that Deaver used alternative light sources to examine Defendant's shirt and found no blood spatter. [Tr. 8990]. On Mrs. Peterson's pants, Deaver identified heavy staining from the waist down, some blood spatters [Tr. 8377], and on the back there was a transfer stain with a pattern. [Tr. 8380]. Agent Petzka testified that this stain matched the sole of a shoe found near Mrs. Peterson's body, and that the stain was made without there being any movement between the pants and the shoe. [Tr. 7417-18]. Mrs. Peterson's top had significant soaking stains, from the bleeding on her scalp. [Tr. 8381]. Todd Peterson's shirt had transfer blood stains. [Tr. 8382]. Similarly, Todd Peterson's pants had blood stains, including a good sized blood drop on the bottom of the leg. [Tr. 8384].

On cross-examination, Deaver testified that he had not attempted to control for all relevant variables in conducting his tests, [Tr. 8907], and that he did not test alternative theories for what may have caused the stains, but rather designed tests to confirm his theories. [Tr. 8965]. The testing included tests done in a mock-up of the bottom of the stair way, built to scale, in which Deaver inflicted numerous blows to a blood source in an attempt to recreate the stains found at the scene. Even after 38 impacts - more than could possibly have been inflicted on Mrs. Peterson - there were significant differences in the amount of stains present in the test site and those present in the real stairs. [Tr. 9877-79]. Deaver's socks, worn during the tests, contained blood spatter, while socks found at the scene did not. [Tr. 9046]. In addition, Deaver did not attempt to determine if the stains at the scene could have been produced by cast-off from hair, hands or fingers. [Tr. 8996-98].

The defense disputed both the reliability of the evidence used by Deaver and the opinions that he reached, and called witnesses to testify that the scene was managed and documented inappropriately, and that the stains were consistent with injuries inflicted in a fall rather than a beating. Major Timothy Palmbach, of the Connecticut Department of Public Safety, Division of Scientific Services, testified that the manner in which the scene was controlled and documented adversely affected the significance of the evidence found at the scene.

According to Major Palmbach, allowing Defendant or others to go into the stairway, or to handle Mrs. Peterson's body, posed a "substantial problem," as it could alter the stains that were in existence. [Tr. 11490-91]. For example, physically removing Defendant from his wife's body may have resulted in cast off of the small drops of blood found on the header across from the stairs. [Tr. 11491]. Similarly, allowing Defendant and family and friends to walk around the kitchen could impact subsequent luminol analysis. [Tr. 11496-98]. Allowing Dr. Snell to walk up and down the stairs, while there was still damp blood in the area, could affect the scene. [Tr. 11504].

Dr. Henry Lee, a forensic scientist who teaches at the University of New Haven, who had previously served as the Commissioner for the Connecticut State Police, and as chief criminalist for the State of Connecticut, also testified for the defense. [Tr. 11619-11623]. Dr. Lee had authored or co-authored approximately 30 books, and testified in almost 1,000 cases, principally for the prosecution. [Tr. 11625-27]. Dr. Lee had been to the hundreds of beating scenes. [Tr. 11624].

Dr. Lee had been to the scene, examined the photographs taken by the State, and the clothing taken from Defendant, Mrs. Peterson and Todd Peterson, and spent several hours at the laboratory where Deaver performed his experiments. [Tr. 11646]. Dr. Lee testified that that scene was not consistent with a beating death. [Tr. 11648]. Dr. Lee explained that the medium velocity blood spatter at the scene was not necessarily caused by blows; such spatter can be caused by a variety of actions, such as a head hitting a wall, hands hitting together, and even coughing blood. [Tr. 11631]

Dr. Lee explained that there was over 10,000 blood drops at the scene, going in numerous different directions, which was not consistent with a typical beating. [Tr. 11643]. Dr. Lee explained that a point of origin - more properly viewed as an area of origin - simply indicates the area from which blood originated, but does not indicate that a beating took place, as the stains could have been caused by someone in that area coughing. [Tr. 11696]. The variety of stains, and directions, indicated to Dr. Lee that the stains could not be from a beating, but were from multiple sources, such as coughing, someone shaking their head and moving around inside the stairs. [Tr. 11706]. Blood at the scene bore evidence of being aspirated blood. [Tr. 11713]. Dr. Lee saw evidence of blood in Mrs. Peterson's mouth from the scene photographs. [Tr. 11712].16

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

As to the stains on the header, used by Deaver as a basis for finding cast-off, Dr. Lee testified that the stains in fact were traveling in different directions. [Tr. 11697]. Dr. Lee testified that these stains could come from someone's hand or finger moving. [Tr. 11699]. The void area identified by Agent Deaver was not evidence of a clean-up, but rather evidence that blood drops were blocked by something at the time they were created. [Tr. 11721]. The stains on Defendant's shorts, according to Dr. Lee, were not evidence that Defendant had been present during a beating. The area of dilution was consistent with contact with a wet towel, such as the towels placed under Mrs. Peterson's head, and the stains on the inside of the pant leg could not be ascribed to a beating. [Tr. 11733].

II. Pathology

Dr. Radisch performed the autopsy of Mrs. Peterson. The most significant injuries were a number of lacerations on the back of Mrs. Peterson's head. Some of the lacerations went through to the skull, and were associated with a large amount of bleeding into the scalp. [Tr. 10710]. There were two tri-pronged lacerations, one of which had an avulsion or flap of skin that was disconnected from the skull. Near the base of the skull were two horizontal lacerations. [Tr. 10711]. There were two additional vertical lacerations, with elements of avulsion. [Tr. 10712]. Areas of bruising associated with the lacerations did not reveal a pattern consistent with a weapon. [Tr. 10729]. Significantly, there was no skull fracture. [Tr. 10732]. Dr. Radisch testified that the injuries could have been inflicted with an instrument such as the blow-poke. [Tr. 10749].

There was a small amount of subarachnoid hemorrhage. In addition, there was a fracture of the superior horn of the left thyroid cartilage. [Tr. 10735]. Dr. Radisch testified that bleeding at the injury site indicated that the injury occurred prior to death. Similar bleeding at the spine, however, was attributed to post-mortem artifact. [Tr. 10738]. According to Dr. Radisch, the injury to the thyroid was the result of direct trauma, such as in a case of attempted strangulation. [Tr. 10748]. However, none of the other indicia of strangulation, such as petechia or internal bruising and hemmorrhaging, were present. [Tr. 10925-26]. Dr Radisch agreed that well respected pathologists would never find evidence of strangulation solely on the basis of this injury. [Tr. 10931].

Testing revealed a blood alcohol content equivalent to blowing a .07 on a breathalayzer, and Diazepam levels equal to ingesting between 5 and 15 milligrams of Valium shortly before the time of death, [Tr. 10739], which is a significant dose of Valium, and can have a synergistic effect on alcohol. [Tr. 10872].

Dr. Radisch also described bruising over the right eye lid, [Tr. 10708], near the ear lobe, and abrasions near the left eyebrow. [Tr. 10709]. A small area of abrasion was over the nose, and some bruising on the tip of the nose. [Id.]. An abrasion was over the lip, below one eye and on the right side of the neck. [Tr. 10710]. There was also a contusion on Mrs. Peterson's back, which was a post-mortem injury caused by leaning against the edge of step. [Tr. 10714]. There were contusions around the elbows, and abrasions and bruising on the hands. [Tr. 10715]. The injuries to areas other than head were consistent with efforts to ward off blows. [Tr. 10742]. Dr. Radisch testified that the cause of death was non-accidental blunt force trauma. [ Tr. 10741]

On cross-examination, Dr. Radisch testified that she would not be surprised by the fact that more people die by falling down stairs than by beatings, [Tr. 10837], and that a single fall can cause more than one impact, such as a fall in which several surfaces are struck. [Tr. 10842]. Dr. Radisch reviewed reports in 19 other beating cases in which she performed the autopsy, and agreed that in all cases was fractured skulls and facial bones or traumatic brain injury beyond the subarachnoid hemorrhage in Mrs. Peterson's case. Dr. Radisch agreed that the injury to the brain were not inconsistent with a fall, and that no single laceration was such that she could testify that is was not caused by a fall. [Tr. 10938, 10943]. The blood loss was a significant factor in the cause of death, and Dr. Radisch believed that there might also be diffuse axonal injury that could not be seen microscopically. [Tr. 10944-45].

Dr. Thomas Bouldin, a professor at the School of Medicine at the University of North Carolina, reviewed Mrs. Peterson's brain following the general autopsy. Dr. Bouldin testified that he found a small to moderate amount of hemorrhage in the surface of the brain. [Tr. 10511]. Such a hemorrhage does not indicate whether the person fell on the stairs, and is not life threatening. [Tr. 10524-25]. Dr. Bouldin also found some neurons that had showed discoloration when stained, which are usually caused by a period of decreased blood flow to the brain, such as from significant bleeding. Dr. Bouldin had seen them develop within two hours of a documented loss of blood flow. [Tr. 10513-14]. Dr. Bouldin did not find a cause of death within the brain itself. [Tr. 10535].

The defense called Dr. Jan Leestma to testify concerning the forensic pathological findings. Dr. Leestma had been the Chief of Neurology at the medical center at Northwestern University in Chicago, and was an associate medical examiner and consultant in neuropathology. [Tr. 11000]. Dr. Leestma had examined over 5,000 brains, and authored a textbook titled Forensic Neuropathology. [Tr. 11002-03]. Dr. Leestma not only examined the brain tissue of Mrs. Peterson, [Tr. 11012] but also examined 257 autopsy reports in North Carolina of death due to blunt trauma to the head from beatings, covering 1991 to the present.

Dr. Leestma disagreed with Dr. Radisch that Mrs. Peterson was beaten with an instrument such as the blow poke. [Tr. 11076]. The complex lacerations found on Mrs. Peterson's head were not consistent with the type of linear lacerations that would be caused by a beating with a long-handled instrument. [Tr. 11078]. The lacerations were consistent with an impact against a relatively flat, immovable object. [Tr. 11089]. Avulsions could be formed if the head hit the surface at an angle. [Tr. 11092-93]. Dr. Leestma explained that what appeared to be two separate lacerations could be cause by a single impact. [Tr. 1110-11].

In addition, during a single fall a person can hit more than one surface. [Tr. 11133]. Dr. Leestma believed that the injuries could be accounted for by a total of four impacts on Mrs. Peterson's head. [Tr. 11135]. Dr. Leestma testified that the red neurons identified by Dr. Bouldin could develop within 30 minutes, [Tr. 11137], a time period to which Dr. Snell had testified to in another case. [Id.]. Dr. Leestma also testified that the small amount of hemorrhage at the thyroid fracture was consistent with a post-mortem injury, similar to the artifactual bleeding when the spine was removed. [Tr. 11146].

Mrs. Peterson's injuries stood in sharp contrast with those seen in the beating cases Dr. Leestma reviewed. Of the 257 cases reviewed, 215 had skull, facial or other associated fractures. Of the remaining cases, only 8 did not have traumatic brain injury. None of those cases involved multiple impacts. [Tr. 11199-200].

III. Biomechanics

The defense presented expert testimony concerning the biomechanics of a fall, and at least one possible scenario in which Mrs. Peterson's injuries could have been caused by a fall. Dr. Faris Bandak, a professor of biomechanics and former director of the head injury research program at the National Highway Traffic Safety Administration, analyzed the injuries and the possible sequence of events that could cause those injuries. [Tr. 11935]. Dr. Bandak explained that the lacerations caused by a head hitting a flat surface, such as the floor, are irregular, while blows from a rounded instrument such as the blow poke create linear bruises. [Tr. 11968-71]. Blows from a single instrument would produce a more uniform series of lacerations. [Tr. 11977]. The bruises and other injuries on the extremities could have been caused by hitting various surfaces during a fall. [Tr. 11978].

Dr. Bandak testified that, applying biomechanical principals, the injuries sustained by Mrs. Peterson were inconsistent with being hit with a blow poke, but were consistent with a fall. [Tr. 11985] Dr. Bandak considered the force required to cause laceration without a skull fracture and then considered the various surfaces that were available inside the stairway, such as the door molding, edges of the steps, and the edge of a metal lift. [Tr. 11976]. Dr. Bandak then explained, using a sequences of illustrations, that Mrs. Peterson could have fallen backwards after walking up a few of the stairs, hitting her head against the door jamb and then near the floor of step 17. [Tr. 11987]. The blood on the bottom of Mrs. Peterson's feet was consistent with her attempting to stand after the first fall, and then falling a second time, hitting her head again. The two falls would produce four impacts, accounting for the various injuries. [Tr. 11990].

In rebuttal, the State presented the testimony of Dr. McElhaney, who testified that not all of the various injuries could be accounted for by a fall on the steps, and that the injuries were consistent with being hit with a rounded instrument. [Tr. 12415]. Dr. McElhaney testified that Dr. Bandak's scenario could account for some of the injuries, but disputed whether it would produce enough force to account for all of the lacerations. [Tr. 12423]. Dr. McElhaney agreed that one could get more than one laceration from a single impact, and that one of the lacerations was a stellate laceration consistent with hitting a flat surface. [Tr. 12464].17

17 The State also called Dr Butts in rebuttal, who testified largely to the same opinions offered by Dr. Radisch. [Tr. 12792]. Dr. Butts also disagreed with defense evidence regarding Dr. Leestma's testimony regrading blood in the lungs.[Tr. 12809]

H. Evidence Regarding Death of Elizabeth Ratliff in 1985

I. Background

A significant aspect of the State's case that Mrs. Peterson died from the result of a beating, rather than a fall on the stairs, was evidence regarding the death of Elizabeth Ratliff in 1985 in Germany. Mrs. Ratliff taught at a Department of Defense school and was close friends with Defendant and his first wife, Patty, who was also a teacher. Mrs. Ratliff had two young daughters, Margaret and Martha, and was left a widow when her husband died while on assignment for the United States Air Force. [Tr. 9693-97]

After her husband's death, Mrs. Ratliff lived with her two daughters and with a nanny, who often stayed in the residence. On November 25th, 1985, Mrs. Ratliff was found dead in her residence by her nanny. Mrs. Ratliff was at the bottom of a flight of stairs, and had suffered several lacerations to the head. German doctors responded to the scene and determined that Mrs. Ratliff died of natural causes, which in turn caused her to fall. [Tr. 9854] An army CID investigator came to the scene and found nothing inconsistent with the finding of a natural death. [Tr. 10048] A subsequent autopsy confirmed that the death had been caused by intracranial bleeding, which in turn caused the fall. [Tr. 9885]

Despite the prior findings that Mrs, Ratliff died from natural causes, the State had her body exhumed and a new autopsy performed by Dr Radisch, who came to the conclusion that Mrs. Ratliff died from blunt force trauma to the head. Although the State presented no evidence that Defendant was present when the injuries were inflicted, or had a motive to kill Mrs. Ratliff, the trial court overruled Defendant's motion in limine to exclude evidence of this death. [R.p. 179].

II. Lay Witness Evidence

Thomas and Cheryl Appel-Schumacher were friends with Mrs. Ratliff. Mrs. Appel-Schumacher taught at the same school as Mrs. Ratliff and considered her a good friend. [Tr. 9693]. Mrs. Appel- Schumacher testified that Defendant and his first wife were very close friends with Mrs. Ratliff, and that Defendant had helped Mrs. Ratliff after the death of her husband. [Tr. 9697, 9736]. Elizabeth Ratliff went into a long period of mourning following her husband's death in October, 1983. [Tr. 9696].

Mrs. Appel-Schumacher married in the United States during the summer of 1985, and the couple returned to Germany. [Tr. 9699]. Mrs. Ratliff planned a surprise party for the couple for the Saturday before Thanksgiving. On the Thursday before the party, Mrs. Ratliff looked pale and said that she had severe headaches and had a medical appointment for the next week. [Tr. 9748-49].

Barbara Malagnino worked as a nanny for Mrs. Ratliff. She had a room at the residence, but also stayed at an apartment some nights. [Tr. 10098]. Malagnino testified that she saw the Petersons every day, and said "it was like one big family." [Tr. 10104]. Malagnino spent the weekend with the Ratliffs, but spent Sunday night at her apartment. Mrs. Ratliff planned on spending the day with her daughters, and then taking her car in to be left for service. Defendant was to bring Mrs. Ratliff home from dropping off her car. [Tr. 10105]. Malagnino took a taxi to the house on Monday morning, and noticed that lights were on in the house. [Tr. 10108-09].

When she entered the house, Mrs. Ratliff was laying on the bottom of the steps. Malagnino did not recognize her, and ran upstairs. She found the telephone in Mrs. Ratliff's bedroom, where Mrs. Ratliff would put it every night before going to sleep.[Tr. 10111] She was unable to call the Petersons, and ran down the stairs. Mrs. Ratliff was in a pool of blood and felt warm. Malagnino ran to the Petersons'. Mrs. Peterson answered the door, and Defendant came out of the upstairs in his boxers and tshirt. The Petersons returned to the house with Malagnino.[Tr. 10111-17]. Malagnino then took the girls out of the house. [Tr. 10132]. After Mrs. Ratliff's death, Defendant assisted by handling the payment of bills and things of that nature. [Tr. 10136].18

18 Mrs. Malagnino also testified that a specific poster in Defendant's house in Durham had been in her room in Germany.[Tr. 10139]. The back of the poster, however, had a copyright of 1997 [Tr. 10228].

On Monday morning Mrs. Appel-Schumacher learned of Mrs. Ratliff death. [Tr.9703]. Mrs. Appel-Schumacher and her husband went to the Ratliff house, and met Amy Beth Berner and her husband Bruce, Defendant and his wife, and Barbara Malagnino. German medical authorities were at the scene. [Tr. 9704-05]. Elizabeth Raltiff was laying on the floor, covered by a coat, wearing boots, and Barbara was hysterical. [Tr. 9705-06]. Mrs. Ratliff's body had already been moved. [Tr. 9756] Mrs. Berner spoke German well, and dealt with the medical people. [Tr. 9706]. Defendant did not speak German well, [Tr. 9766], and Defendant dealt with American military authorities, such as pointing out who was present at the house. [Tr. 9707-09]. Defendant did nothing to hinder the investigation. [Tr. 9771-72].

Mrs. Appel-Schumacher testified that there was a pool of blood under Mrs. Ratliff's body, [Tr. 9722], and blood stains along the wall going up the stairs that led to the next floor. [Tr. 9708]. Mrs. Appel-Schumchaer conceded that she had trouble remembering aspect of the morning, such as all of the people who were there, and that went she recently went back to the house it seemed much smaller than she had recalled. [Tr. 9712, 9722]. The blood was not cleaned until after Mrs. Ratliff's body was moved and the authorities left, at which point several people cleaned up the stains. [Tr. 9710-11]. Thomas Appel-Schumacher essentially echoed his wife's recollections of the events. [Tr. 9781 et seq.].

Ms. Berner, a friend and neighbor of Mrs. Ratliff, arrived at the house after being summoned by Malagnino. [Tr. 10233]. Ms. Berner explained that she saw blood on the walls, and claimed that she told people that she thought it was a crime scene because she saw a bloody foot print. Barbara explained that it was her foot print from being in the house. [Tr. 10236].

According to Ms. Berner, she spoke with German authorities, and after they left some American authorities came. Although she claimed to have suspected it was a crime scene, she said nothing to the authorities that she spoke to, and that she said nothing to any authority for 16 years. [Tr. 10243, 10252]. Ms. Berner admitted that she had been pregnant at the time, and people shielded her from the scene,[Tr.10250] and that some of memories were really "flashbacks" she had recently been having of the scene. [Tr. 10257].

Steven Lyons was a Special Agent with the United States Army Criminal Investigation Command. [Tr. 10039]. When an American associated with the military died off base, the CID would assist the German authorities. [Tr. 10044]. Agent Lyons responded to the Ratliff residence, with an interpreter, to assist the German police. There were "too many people for a scene of that type." [Tr.10046]. Mrs. Ratliff's body was still at the scene. [Tr. 10047].

German police informed Lyons that the death was natural, due to a cerebral hemorrhage, and Lyons examined the scene to see if there was anything inconsistent with this determination. Lyons walked up the staircase, and did not see any blood other than the blood on the landing where Mrs. Ratliff lay. [Tr. 10048-49]. Lyons took names of persons present, and recalled speaking to one male who relayed the same information relayed by the German police regarding the cause of death. [Tr. 10068-69]. Lyons' examination disclosed nothing that was inconsistent with a natural death. [Tr. 10083].

Margaret Blair, Mrs. Ratliff's sister, lived in the United States in 1985. After Mrs. Ratliff died, she learned that the will designated the Petersons as guardians of the two girls. [Tr. 9937; 9952]. Mrs. Blair was not surprised that her sister chose the Petersons as guardians as her sister had spoken of the relationship with the Petersons. [Tr. 9953]. Mrs. Blair learned of her sister's death from a telephone call from Defendant. After hearing what happened, Mrs. Blair was in shock and testified that it was possible that Defendant explained that there had been a stroke. [Tr. 9949]. The girls visited with the aunt as they were growing up, but Defendant would not agree to give up the guardianship that the Ratliffs' had entrusted to him.19 No evidence was presented that Defendant personally benefitted from the estate.

19 The jury was provided with a letter that Defendant wrote, explaining why he believed it was appropriate for him to continue in the role that had been entrusted to him. [Tr. 9955].

III. Forensic Evidence

Dr. Larry Barnes, a board certified anatomic and clinical pathologist, performed the original autopsy of Mrs. Ratliff. [Tr. 9849]. Dr. Barnes did not have specific training in forensic pathology. Dr. Barnes, relying on his contemporaneous report, explained that Mrs. Ratliff had von Willebrands disease, a bleeding disorder, and had been complaining of headaches. There were no signs of struggle at the scene, and German medical personnel found bloody spinal fluid consistent with intracranial bleeding, with subsequent scalp lacerations sustained during a fall on the stairs. [Tr. 9855].

Dr. Barnes performed an examination of head lacerations, and then examined the brain. [Tr. 9858-60]. There were multiple lacerations, some to the skull, on the back of the head. [Tr. 9862]. Cerebellar lobes showed herniation, consistent with pressure caused by intracranial hemorrhage. The ventricles of the brain were filled with blood. [Tr. 9864]. Dr. Barnes considered whether death was due to trauma from falling on the stairs, but determined that the death was natural, due to intracranial bleeding due to an aneurysm or similar mechanism. [Tr. 9885-86]. A slide of brain tissue was prepared, and eventually reviewed by the Armed Forces Institute of Pathology. [Tr. 9873]. The AFIP is staffed by world-known experts, including forensic experts. After reviewing the material provided,20 the Chief of the Division of Forensic Pathology agreed that the death was "sudden unexpected death due to spontaneous intracranial hemorrhage complicating von Willebrand's Disease, natural." [Tr. 9906].

20 After reviewing the slide, the AFIP initially questioned, but did not determine, whether the slide showed a vascular malformation. The final report was issued after this question was raised. [Tr. 9905].

Dr. Radisch and Dr. Gleckman performed a second autopsy on Mrs. Ratliff. There were seven lacerations on the head, which had been glued and sewn prior to internment. [Tr. 10758]. There was also a linear fracture at the base of the skull, and bruising of the left hand, wrist, near the left eye and upper back. [Tr. 10762, 10780, 10786]. The brain, and other organs, had been placed in the chest cavity. By the time of the second autopsy, only half the brain remained, sectioned into pieces in a peculiar manner. [Tr. 10386-87]. Dr. Gleckman noted different areas of hemorrhages in the brain, including in the epidural space, the subdural space, and the subarachnoid space. [Tr. 10397].

Dr. Gleckman testified that he did not see the blood in the ventricles observed by Dr. Barnes. [Tr. 10438]. Dr. Gleckman agreed that a vascular anomaly can cause headaches, [Tr. 10474], and that intracranial bleeding can be caused by a stroke as well as by blunt force trauma. [Tr. 10494]. Although Dr. Gleckman's examination of the brain did not reveal any indication that any given injury was other than accidental, [Tr. 10488], based upon the number and location of the lacerations he concluded that the injuries were inflicted during an assault. [Tr. 10495]. Dr. Radisch concurred in this conclusion. [Tr. 10802-03]. Rigor, which increases over time, is a means of estimating time of death. Dr. Radisch agreed that, had Mrs. Ratliff died the evening before she was found, one would expect to see significant rigor examining the body the next morning. No rigor was reported. [Tr. 10917].

Dr Leestma examined the remaining portions of the brain, and testified that he disagreed that there was not sufficient evidence of a stroke. [Tr. 11151]. As with Dr. Barnes, Dr. Leestma saw evidence of herniation, and of vascular malformation. [Tr. 11155- 62]. When examination of the brain reveals intraventicular hemorrhage, there is a significant chance of a rupture or a vascular malformation, and a lesser chance of traumatic injury to the brain. [Tr. 11173]. Dr. Leestma testified that there was a very likely that Elizabeth Ratliff died from a stroke. [Tr. 11179].

I. Evidence Regarding Defendant's Bi-Sexuality (sic)

The search of Defendant's residence, and computer, produced evidence that Defendant was bi-sexual, with an interest in a physical relationship with men. Specifically, sexual images of men were found during the search of the computer, as were indications that the computer had been used to access sexual web-sites. E-mail correspondence with a male escort, later identified as Brent Wolgamott, indicated that Defendant once expressed an interest in a paid, physical relationship with Wolgamott.

The trial court denied defendant's motion in limine and objections regarding the admissibility of this evidence,[Tr. 7757, 7796, 7869], denied the motions to suppress the evidence as the product of an illegal search, [Tr. 7762,, 8060], and allowed the State to present the images and the live testimony of Wolgamott.

Specifically, images that were stored in the temporary internet file, which indicated that they had been viewed during web browsing, were introduced, [Tr. 7882-84], a list of web addresses that were contained on the hard drive was introduced [Tr. 7887, and a series of e-mails with Wolgamott were introduced. [Tr. 8069]. These e-mails, and the testimony of Walgamott, indicated that Defendant and Wolgamott corresponded in August and September, 2001, about a possible meeting for sex, which never took place.[Tr. 8071-79].

During these e-mail exchanges, Defendant made clear that he was bi-sexual, and loved his wife, [Tr. 8077, 8089] and was only interested in a paid, physical relationship. [Tr. 8083] Walgamott testified that most of his clients were married men, who were bi-sexual and happily returned to their married lives after an encounter with him. [Tr. 8081-82].

After closing arguments, which are discussed in the body of the brief, and several days of deliberations, Defendant was convicted of first degree murder and sentenced to life in prison.