No. COA10-538 NINETEENTH (B) DISTRICT

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA ))

v. ) From Randolph County)

MORRIS CLEM PATTERSON )

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DEFENDANT-APPELLANT’S BRIEF

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INDEX

TABLE OF AUTHORITIES......................................................vISSUES PRESENTED...............................................................1STATEMENT OF THE CASE..................................................2STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW.....................................................................................3STATEMENT OF THE FACTS................................................3ARGUMENT............................................................................14

I. THE TRIAL COURT COMMITTED PLAIN ERROR IN ADMITTING STATE’S EXHIBIT NO. 19 AND RELATED TESTIMONY WHERE THE PROBATIVE VALUE OF THIS EVIDENCE WAS SUBSTANTIALLY OUTWEIGHED BY THE DANGER OF UNFAIR PREJUDICE, CONFUSION OF THE ISSUES, OR MISLEADING THE JURY, AND WAS NOT A PROPER BASIS FOR AN EXPERT OPINION IN VIOLATION OF MR. PATTERSON’S STATE AND FEDERAL RIGHTS......14

A. Statement of Standard of Review...............................15

B. Analysis......................................................................15

II. MR. PATTERSON’S CONVICTIONS FOR INVOLUNTARY MANSLAUGHTER, FELONY SERIOUS INJURY BY VEHICLE, AND DRIVING WHILE IMPAIRED MUST BE VACATED BECAUSE THE EVIDENCE HE WAS UNDER THE INFLUENCE OF AN IMPAIRING SUBSTANCE WAS INSUFFICIENT AS A MATTER OF LAW AND FACT AND THE TRIAL COURT COMMITTED ERROR IN NOT GRANTING THE MOTIONS TO DISMISS AND SUBMITTING THE CHARGES TO THE JURY IN VIOLATION OF MR. PATTERSON’S STATE AND FEDERAL RIGHTS.................................................................22

A. Statement of Standard of Review...............................23

B. Analysis......................................................................24

CONCLUSION........................................................................26

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CERTIFICATE OF COMPLIANCE WITH N.C.R. APP. P. 28(j)(2)(A)(2)............................................................................27CERTIFICATE OF FILING AND SERVICE.........................28APPENDIX:

State v. Fletcher, No. COA09-926,Brief for the State App. 1State v. Verdicanno, No. COA99-1086,137 N.C. App. 589 (filed 18April 2000)(unpublished opinion) App. 11Direct Examination Testimony of James L. Brown App. 17Direct Examination Testimony ofAnthony Dees App. 18Cross Examination Testimony ofAnthony Dees App. 24Direct Examination Testimony ofSabrina Elliot App. 29Cross Examination Testimony ofSabrina Elliot App. 36Direct Examination Testimony ofRoger Marsh App. 38Direct Examination Testimony ofEmily Watkins App. 41Cross Examination Testimony ofEmily Watkins App. 43Direct Examination Testimony ofJoshua Smith App. 47Cross Examination Testimony ofJoshua Smith App. 61Arguments and Ruling on RenewedDirect Examination Testimony ofLinda E. Farren App. 63Direct Examination Testimony ofPaul L. Glover App. 66Cross Examination Testimony ofPaul L. Glover App. 72Direct Examination Testimony ofKevin Jones App. 74Direct Examination Testimony ofMicaela Jaramillo Navarette App. 75

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Direct Examination Testimony ofMorris Clem Patterson App. 76Cross Examination Testimony ofMorris Clem Patterson App. 81Defendant’s Closing Argument App. 84

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TABLE OF AUTHORITIES

CASES

Alford v. Shaw, 327 N.C. 526, 398 S.E.2d 445 (1990). . .17 fn. 2

Bagheri v. State, 87 S.W.3d 657 (Tex. App. 2002)..................20

Mata v. State, 46 S.W.3d 902 (Tex. Cr. App. 2001)................20

N.C. Dep't of Env't & Natural Res. v. Carroll, 358 N.C. 649, 599 S.E.2d 888 (2004)..........................................................23

Schmerber v. California, 384 U.S. 757, 16 L. Ed. 2d 908 (1966)......................................................................................17

State v. Davis, 142 N.C. App. 81, 542 S.E.2d 236 (2001).......17

State v. Fletcher, ___ N.C. ___, 688 S.E.2d 94 (2010).......18-19

State v. Gregory, 154 N.C. App. 718, 572 S.E.2d 838 (2002)......................................................................................25

State v. Jones, 353 N.C. 159, 538 S.E.2d 917 (2000)..............24

State v. Kemmerlin, 356 N.C. 446, 573 S.E.2d 870 (2002).....23

State v. Locklear, 172 N.C. App. 249, 616 S.E.2d 334 (2005)......................................................................................15

State v. Mark, 154 N.C. App. 341, 571 S.E.2d 867 (2002)......25

State v. McLean, ___ N.C. App. ___, ___ S.E.2d ___, 2010 N.C. App. LEXIS 1147 (No. COA09-1602) (filed 6 July 2010).....................................................................................15

State v. Mumford, ___ N.C. App. ___, 688 S.E.2d 458 (2010).......................................................................................24

State v. Nettles, 170 N.C. App. 100, 612 S.E.2d 172 (2005)...23

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State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983).......15, 22

State v. Rich,351 N.C. 386, 527 S.E.2d 299 (2000).................25

State v. Rose, 312 N.C. 441, 323 S.E.2d 339 (1984)...............17

State v. Verdicanno, No. COA99-1086, 137 N.C. App. 589. (filed 18 April 2000) (unpublished opinion)..............17-19, 25

State v. Ward, 338 N.C. 64, 449 S.E.2d 709 (1994)........17 fn. 2

State v. Wilkerson, 363 N.C. 382, 683 S.E.2d 174 (2009).......15

Staton v. Brame, 136 N.C. App. 170, 523 S.E.2d 424 (1999)..23

Swain v. Creasman, 260 N.C. 163, 132 S.E.2d 304 (1963).............................................................................17 fn. 2

United States v. McCaskill, 676 F.2d 995 (4th Cir. 1982).......15

STATUTES & ADMINISTRATIVE CODES

N.C. Gen. Stat. § 7A-27(b).........................................................3

N.C. Gen. Stat. § 8C-1, Rule 403.......................................16, 25

N.C. Gen. Stat. § 8C-1, Rule 703.............................................19

N.C. Gen. Stat. § 14-18............................................................24

N.C. Gen. Stat. § 15A-1444(a)...................................................3

N.C. Gen. Stat. § 20-4.01(33a)............................................16-17

N.C. Gen. Stat. § 20-138.1.......................................................24

N.C. Gen. Stat. § 20-138.1(a)(2)........................................16, 24

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N.C. Gen. Stat. § 20-141.4(a3).................................................24

N.C.R. App. P. 10(c)(4)(2007).................................................15

N.C.R. App. P. 26(a)(2)............................................................28

N.C.R. App. P. 26(c)................................................................28

N.C.R. App. P. 28(j)(2)(A)(2)..................................................27

N.C.R. App. P. 30(e)(3)............................................................18

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No. COA10-538 NINETEENTH (B) DISTRICT

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA ))

v. ) From Randolph County)

MORRIS CLEM PATTERSON )

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DEFENDANT-APPELLANT’S BRIEF

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ISSUES PRESENTED

I. WHETHER THE TRIAL COURT COMMITTED PLAIN ERROR IN ADMITTING STATE’S EXHIBIT NO. 19 AND RELATED TESTIMONY WHERE THE PROBATIVE VALUE OF THIS EVIDENCE WAS SUBSTANTIALLY OUTWEIGHED BY THE DANGER OF UNFAIR PREJUDICE, CONFUSION OR THE ISSUES, OR MISLEADING THE JURY, AND WAS NOT A PROPER BASIS FOR AN EXPERT OPINION IN VIOLATION OF MR. PATTERSON’S STATE AND FEDERAL RIGHTS?

II. WHETHER MR. PATTERSON’S CONVICTIONS FOR INVOLUNTARY MANSLAUGHTER, FELONY SERIOUS INJURY BY VEHICLE, AND DRIVING WHILE IMPAIRED MUST BE VACATED BECAUSE THE EVIDENCE HE WAS UNDER THE INFLUENCE OF AN IMPAIRING SUBSTANCE WAS INSUFFICIENT AS A MATTER OF LAW AND FACT AND THE TRIAL COURT COMMITTED ERROR IN NOT GRANTING THE MOTIONS TO DISMISS AND SUBMITTING THE CHARGES TO THE JURY IN VIOLATION OF MR. PATTERSON’S STATE AND FEDERAL RIGHTS?

STATEMENT OF THE CASE

On 5 November 2007, the Randolph County Grand Jury issued indictments

charging Defendant-Appellant Morris Clem Patterson with second-degree murder,

two counts of felony serious injury by vehicle, reckless driving, driving while

license revoked, operation of motor vehicle without financial responsibility, and

driving while impaired. (R pp. 29-33) On 27 July 2009, the State dismissed the

charge operation of motor vehicle without financial responsibility. (R p. 54; T p. 5)

This case came for trial before the Honorable Vance Bradford Long, Senior

Resident Superior Court Judge presiding, during the 27 July 2009 Criminal Session

of the Superior Court of Randolph County. (R p. 1) On 31 July 2009, following

jury selection and presentation of evidence, the jury returned verdicts finding Mr.

Patterson guilty of involuntary manslaughter, two counts of felony serious injury

by vehicle, reckless driving to endanger, driving while license was revoked, and

driving while impaired. (R pp. 131-36) On that same date, Judge Long entered

judgment. For the involuntary manslaughter and two counts of felony serious

injury by vehicle convictions, Mr. Patterson was sentenced to three consecutive

terms of 16 to 20 months imprisonment. (R pp. 139-44) For the driving while

license was revoked conviction, Mr. Patterson was sentenced to a term of 120 days

imprisonment to be served consecutively to the second felony serious injury by

vehicle conviction. (R pp. 147-48) For the reckless driving to endanger, Mr.

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Patterson was sentenced to a term of 60 days imprisonment, to be served

consecutively to the driving while license was revoked conviction. (R pp. 145146)

Judge Long arrested judgment on the driving while impaired conviction. (R p. 149)

On that same date in open court, Mr. Patterson entered notice of appeal. (T Vol. V,

p. 947) The record on appeal was filed in the Court of Appeals on 5 May 2010,

docketed on 12 May 2010, and mailed to the parties on 14 May 2010. The time for

filing Defendant-Appellant’s Brief was extended until 29 July 2010.

STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW

Defendant appeals pursuant to N.C. Gen. Stat. §§ 7A-27(b) and 15A-1444(a)

from a final judgment of the Randolph County Superior Court.

STATEMENT OF THE FACTS

The evidence presented at the trial by the State and the Defendant tended to

show that around 4:00 a.m. on 14 June 2007, Defendant-Appellant Morris Clem

Patterson woke up, drank a beer, then went back to sleep around 5:00 a.m. (T Vol.

IV, pp.740, 742) State Bureau of Investigation (“SBI”) Special Agent Kevin Jones

testified that, in a 6 September 2007 statement, Mr. Patterson: “advised he drank

five or six beers late the night before and stopped drinking at five a.m. the morning

of the accident on June 14, 2007.” (T Vol. IV, pp. 687-89, 697) Mr. Patterson

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testified he told Agent Jones he had drunk a total of five to six beers total by the

end of 14 June 2007. (T Vol. IV, p. 774)

Between 3:30 and 4:00 p.m., Mr. Patterson went to Goldston Trailer Park in

Ramseur to the home of Geneva, Jeffrie Lynn Scotton’s girlfriend. (T Vol. IV, pp.

741, 748) Mr. Scotton was there. (T Vol. IV, p. 741) Messrs. Patterson and Scotton

went to Liberty and bought two 12-packs of beer. (T Vol. IV, pp. 695, 741-42)

They put the beer in the backseat of the BMW that Mr. Patterson was driving, and

returned to Goldston Trailer Park. (T Vol. IV, pp. 695, 742, 746, 775) They stayed

there for 15 to 20 minutes, and Mr. Patterson drank one or two beers. (T Vol. IV,

pp. 695, 742-43, 775-76) Then they drove nearby around Oakland Baptist Church1

to see Mr. Patterson’s cousin, Keith Burnett (T Vol. IV, pp. 743-44, 775-76) They

sat out in Mr. Burnett’s yard for about 45 minutes to an hour, and Mr. Patterson

drank another beer. (T Vol. IV, pp. 695, 744)

For most of the day on 14 June 2007, Roger Vincent Marsh was sitting

around at a friend named Peewee’s mobile home waiting for someone to give him

a ride home to Bear Creek. (T Vol. II, pp. 412-14, 416, 419, 432-34; T Vol. IV, p.

702) Peewee was the aunt of Mr. Patterson’s former girlfriend, Tanya “Tan”

Caviness. (T Vol. IV, pp. 744-45, 53) Mr. Marsh’s car was at Peewee’s, but it was

not working. (T Vol. II, pp. 413, 417, 433-34) At around 5:30 or 6:00 p.m., Messrs. 1 The name of the church appears phonetically as “Oakwood” in the transcript, but is properly “Oakland.”

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Patterson and Scotton arrived Peewee’s in the BMW. (T Vol. II, pp. 414-15; T Vol.

IV, pp. 744-45, 776)

Around 6:00 p.m., Mr. Scotton said he wanted to go see his children in

Ramseur, so Mr. Patterson told him to go in the BWM. (T Vol. IV, pp. 745-46) Mr.

Patterson thinks he opened a beer while at Peewee’s, but did not drink the whole

thing because he was not feeling well. (T Vol. IV, pp. 747, 776) Mr. Marsh

testified that Mr. Patterson drank one beer if he drank any at all while at Peewee’s.

(T Vol. II, p. 416) Special Agent Jones testified that, in a 29 June 2007 statement,

Mr. Marsh: “advised he saw Patterson drink one beer and open up another one but

was unsure if he drank it.” (T Vol. IV, p. 701)

Mr. Patterson went into Peewee’s house and went to sleep on the couch. (T

Vol. IV, pp. 747, 776) Around 9:00 p.m., someone woke up Mr. Patterson and told

him that Mr. Scotton had returned. (T Vol. IV, pp. 747, 775) Mr. Scotton wanted to

go back to Geneva’s house for supper, but Mr. Marsh had taken the keys to the

BMW. (T Vol. IV, pp. 695, 748-49, 777) Mr. Patterson checked his voice mail,

and there was a message that there was a checkpoint on Goldston Road or

Highway 49. (T Vol. IV, p. 696, 750-51, 778)

At about 8:50 or 9:00 p.m., Messrs. Patterson, Scotton, and Marsh got in the

BMW and left. (T Vol. II, pp. 416-17; T Vol. IV, pp. 703, 750-51, 776-77, 779)

Before they left, Mr. Patterson told Mr. Marsh to take the beer out of the backseat

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and put it into the trunk because of the nearby checkpoint. (T Vol. IV, p. 696, 750-

51, 777-78) Mr. Patterson was driving, Mr. Scotton was in the front passenger seat,

and Mr. Marsh was in the back behind the passenger seat. (T Vol. II, pp. 412-13,

417-18; T Vol. IV, pp. 703, 750, 778-79)

After less than half a mile, they were traveling on Highway 49. (T Vol. II,

pp. 419-21) Highway 49 is a two lane paved road. (T Vol. II, pp. 288, 290) Mr.

Marsh testified they were heading north on Highway 49 towards Goldston Trailer

Park to first drop off Mr. Scotton, and then to drop off Mr. Marsh in Bear Creek.

(T Vol. II, pp. 421, 424, 435-36; T Vol. IV, p. 703) Mr. Patterson told Mr. Marsh

he did not want to drive the 20 or so miles to Bear Creek, and stopped the car to let

out Mr. Marsh. (T Vol. IV, pp. 752-53, 781) Mr. Marsh did not want to get out,

and Mr. Patterson drove on. (T Vol. IV, pp. 752-53)

Mr. Marsh testified that Messrs. Patterson and Scotton were arguing about

some girl. (T Vol. II, pp. 418-20, 427; T Vol. IV, p. 703) Mr. Patterson testified

that Mr. Marsh was running his mouth about taking him to Bear Creek. (T Vol. IV,

p. 753) Mr. Patterson turned right off of Highway 49 onto Fox Grove Road and

stopped again to let out Mr. Marsh. (T Vol. II, pp. 422, 435; T Vol. IV, pp. 753-54,

780) Mr. Marsh did not want to get out, and Mr. Patterson turned right off of Fox

Grove Road back north onto Highway 49. (T Vol. II, p. 422l T Vol. IV, pp. 754,

759, 781)

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Mr. Patterson testified he was driving under 50 miles an hour, and that Mr.

Marsh complained about his speed. (T Vol. IV, pp. 697, 754, 783) Special Agent

Jones testified that Mr. Patterson put his speed at between 50 to 60 miles per hour

in his statement. (T Vol. IV, p. 697) Mr. Patterson used the rear view mirror to

look at Mr. Marsh. (T Vol. IV, pp. 754, 782-83) Mr. Marsh testified the

speedometer showed they were traveling between 100 and 102 mile per hour. (T

Vol. II, pp. 424-26) Special Agent Jones testified that in his statement, Mr. Marsh

did not know exactly how fast Mr. Patterson was driving, but he believed it was 90

to 100 miles per hour or maybe faster. (T Vol. IV, pp. 704, 708-09) In the opinion

of North Carolina Highway Patrol (“NCHP”) Trooper Brian Palmiter, the BMW

was traveling at 103 miles per hour. (T Vol. III, pp. 542, 585-86, 597) Mr. Marsh

testified he told Mr. Patterson to slow down. (T Vol. II, pp. 421-22; T Vol. IV, p.

704)

Sometime between 9:00 and 9:15 p.m. on 14 June 2007, Micaela Jaramillo

Navarette was driving home from working at Captain Tom’s Seafood to Little

Golden Trail in Ramseur. (T Vol. IV, pp. 724-26, 729) Little Golden Trail

intersects with Highway 49 about three-tenths, a quarter, or half a mile north of

Fox Grove Road. (T Vol. II, pp. 295, 435-36; T Vol. IV, pp. 766-67, 769-70) Ms.

Navarette was driving her sister’s Ford Windstar minivan (T Vol. II, pp. 312-13; T

Vol. III, p. 559; T Vol. IV, p. 726) She turned right from US 64 onto Eastern

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Randolph Road, and then made a left-hand turn to head south on Highway 49. (T

Vol. IV, pp. 726-27, 729-30) She has no memory of that night after that turn. (T

Vol. IV, pp. 725, 727, 731)

Linda Powers Steck was traveling south on Highway 49 on her way from

Greensboro to Troy. (T Vol. II, pp. 370-71) Ms. Steck was behind the van. (T Vol.

II, pp. 371-72) Without applying the breaks or a turn signal, the van slowed down

and turned to the left across Highway 49. (T Vol. II, pp. 372-74, 378-79) In the

opinion of Trooper Palmiter, the van was traveling at 12 miles per hour as it

turned. (T Vol. III, pp. 586, 592) NCHP Trooper William Anthony Dees was

unable to determine if the van’s turn signal was operating. (T Vol. II, pp. 280, 325,

358) Ms. Steck slowed down then came to a stop, and she watched the van turn. (T

Vol. II, pp. 373-74, 379)

Sometime between 9:00 and 9:30 p.m., James L. Brown, an off-duty

emergency medical technician, was driving about 55 miles per hour north on

Highway 49 with his wife and two of their children (T Vol. II, pp. 268-69, 276-78)

Mr. James Brown was about a quarter mile behind the BMW. (T Vol. II, pp. 270,

275, 279)

Mr. Marsh saw headlights coming toward the BMW in the opposite lane. (T

Vol. II, p. 426) Mr. Marsh mentioned something about the headlights to Mr.

Patterson. (T Vol. II, pp. 426-27) Mr. Marsh testified the car in the opposite lane

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was trying to make a left turn. (T Vol. II, p. 428) The next thing Mr. Marsh knew,

the BMW and the other car collided. (T Vol. II, p. 427)

When Mr. Patterson looked back forward after looking at Mr. Marsh in the

rear view mirror, he saw the van coming across the road. (T Vol. IV, pp. 754-55,

783) Mr. Patterson testified he jammed his brakes as hard as he could. (T Vol. IV,

pp. 755, 784) In the opinion of Trooper Palmiter, there were no braking marks. (T

Vol. III, p. 577) Trooper Dees testified there was no indication of braking. (T Vol.

II, pp. 295, 320)

Ms. Steck saw a car coming in the opposite direction in the other lane, and

realized that the van and that car collided. (T Vol. II, pp. 374, 379-80) Ms. Steck

called 911. (T Vol. II, p. 375)

In the opinion of Trooper Palmiter, the vehicles collided while the van was

at a 37 degree angle to the BMW. (T Vol. III, pp. 580-82, 592) The front end of the

BMW and the passenger side of the van collided. (T Vol. II, pp. 286, 297-98, 300,

324)

To Mr. James Brown, the taillights of the BMW seemed to go up in the air

and then come back down. (T Vol. II, pp. 269-70, 279) Mr. James Brown saw the

BMW on the road. (T Vol. II, pp. 270, 272) The BMW was perpendicular to the

road across both lanes, with the front end facing east. (T Vol. II, pp. 285, 290) The

minivan was off the road, on the west-side shoulder, with the front end facing

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southwest. (T Vol. II, pp. 270, 273, 285-86, 290) Mr. James Brown parked his car

and called 911. (T Vol. II, p. 271) Mr. Patterson was in the driver’s seat, but had

his feet on the asphalt. (T Vol. II, p. 272) Mr. Patterson did not seem injured to Mr.

James Brown. (T Vol. II, p. 275) Mr. James Brown checked for Mr. Scotton’s

pulse, but determined that he was dead. (T Vol. II, pp. 272-73) Mr. James Brown

went to check on Ms. Navarette, and decided she had life-threatening injuries. (T

Vol. II, pp. 273-74)

Franklinville Volunteer Fireman Dustin Brown arrived, went to the BMW,

and started patient care on Mr. Patterson. (T Vol. II, pp. 381-84, 387) Mr. Patterson

was in the driver’s seat, but turned towards the door. (T Vol. II, pp. 390-91) Mr.

Dustin Brown put a cervical collar on Mr. Patterson, pulled him out of the BMW,

and placed him on a spine board one or two feet from the BMW. (T Vol. II, pp.

384-85, 387) Mr. Dustin Brown noticed a heavy smell of alcohol. (T Vol. II, p.

384) Mr. Dustin Brown noted that Mr. Patterson was in an out of consciousness,

and determined he had a broken leg and a head injury. (T Vol. II, pp. 388-90)

At 9:41 p.m., Randolph County Emergency Medical Technician Michelle

Perkins arrived, and tended to and transported Ms. Navarette to Moses Cone

Hospital. (T Vol. II, pp. 471-78) Ms. Perkins noted in her report that Ms. Navarette

was “combative.” (T Vol. II, pp. 475, 477) Ms. Perkins testified that Ms. Navarette

was combative because she was hypoxic. (T Vol. II, pp. 480-81) In the opinion of

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Dr. Burke Edward Thompson, Ms. Navarette’s injuries were serious. (T Vol. III,

pp. 601, 607-09)

At approximately 9:41 p.m., NCHP Troopers Dees and Joshua Smith were

traveling south on Highway 49 in an unrelated matter and noticed the accident

scene. (T Vol. II, pp. 282-87, 305; T Vol. III, pp. 499-500) Trooper Dees saw the

emergency services workers tending to Mr. Patterson lying beside the driver’s side

of the BMW. (T Vol. II, pp. 287, 301-02, 348) Trooper Dees noticed an odor of

alcohol coming from Mr. Patterson. (T Vol. II, pp. 302-03, 348) Trooper Dees

noticed that Mr. Patterson’s eyes were red and bloodshot. (T Vol. II, p. 302)

Trooper Dees testified that red eyes could be caused by being under the influence

of an impairing substance, or by head trauma in a collision. (T Vol. II, p. 303)

Trooper Dees testified Mr. Patterson said, “I wasn’t driving.” (T Vol. II, p.

301) Mr. Dustin Brown testified Mr. Patterson kept repeating, “I wasn’t driving.”

(T Vol. II, p. 384) Trooper Dees testified that Mr. Patterson did not deny driving in

his later statement (T Vol. p. 351) Mr. Patterson testified he kept saying, “I’m not

driving. I’m not driving nothing,” because he was upset with himself for driving

from Peewee’s after he had decided he would not be driving any more that day. (T

Vol. IV, pp. 749, 755-56, 784-86)

At 9:46 p.m., Randolph County Paramedic Sabrina Elliott arrived. (T Vol. II,

pp. 392-93, 395, 397) Ms. Elliot confirmed that Mr. Scotton was dead. (T Vol. II,

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p. 408) Ms. Elliot, Mr. Dustin Brown, and Trooper Dees saw Mr. Marsh lying in

the backseat of the BMW. (T Vol. II, pp. 306, 385, 405)

At 9:56 p.m., Ms. Elliot transported Messrs. Patterson and Marsh to Moses

Cone Hospital in the same ambulance. (T Vol. II, pp. 394, 397-98, 403, 408) Ms.

Elliot noted in her report that Mr. Patterson was “combative.” (T Vol. II, p. 399)

Ms. Elliot testified that combativeness is something that she see frequently, and

can several causes including alcohol, head injury, and hypoxia. (T Vol. II, pp. 408-

09) Mr. Patterson testified he asked to be released from the strap around his hip

because it was really hurting. (T Vol. IV, p. 757) At 10:27 p.m., Ms. Elliot turned

Messrs. Patterson and Marsh over to the hospital. (T Vol. II, p. 398)

Trooper Dees saw an unopened 12-ouce beer can in the passenger

compartment and an unopened case of beer in the trunk of the BMW. (T Vol. II,

pp. 308, 350-51) Mr. Marsh testified he did not notice any beer in the BMW. (T

Vol. II, p. 418) According to the records check by Trooper Dees, the BMW was

not currently registered and the license plate on the car did not match the one

assigned to the BMW. (T Vol. II, pp. 315-16) Mr. Patterson testified he was

deciding whether to buy the BMW, and that he had accidentally put the wrong

license plate on the car. (T Vol. IV, pp. 781-82) Special Agent Jones testified that

Mr. Patterson stated in his statement that he was test driving the BMW and put the

wrong tag on the car by mistake. (T Vol. IV, pp. 694-95)

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At 11:26 p.m., Troopers Dees and Smith left to go to Moses Cone Hospital.

(T Vol. II, pp. 331-32; T Vol. III, p. 501) Mr. Patterson and Mr. Marsh were in the

same room in the emergency department, separated by a curtain. (T Vol. II, pp.

332, 430) Both men were in and out of consciousness. (T Vol. II, pp. 332-33)

At 12:44 a.m., blood was drawn from Mr. Patterson and sent to the SBI for

analysis. (R pp. 63-64; T Vol. III, pp. 493-94, 502-14) In the opinion of SBI

Special Agent Linda E. Farren, the alcohol concentration was 0.14 grams of

alcohol per 100 milliliters of whole blood. (R p. 62; T Vol. III, pp. 518, 523) Paul

L. Glover, a research scientist for the Forensic Test for Alcohol branch of the

North Carolina Department of Health and Human Services, used retrograde

extrapolation to form an opinion that Mr. Patterson’s alcohol concentration was

0.19 at the time of the collision. (T Vol. III, pp. 529-30, 534-37)

Mr. Marsh spent 19 or 21 days in Moses Cone Hospital for his injuries. (R p.

40; T Vol. II, pp. 429-30, 440-41) In the opinion of Dr. Thompson, Mr. Marsh’s

injuries were serious. (T Vol. III, p. 604-07)

At 9:55 p.m., Randolph County Emergency Medical Services worker David

Barr arrived. (T Vol. II, pp. 442-43) At 11:26 p.m., Mr. Barr transported Mr.

Scotton to the Randolph Hospital morgue. (T Vol. II, p. 447) In the opinion of Dr.

Marion Griffin, Mr. Scotton’s cause of death was from a broken neck. (T Vol. II,

pp. 449, 464, 466) Special Agent Jones testified that Mr. Patterson stated, “I’m

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sorry my cousin’s gone, but I can’t do anything about it” in his statement. (T Vol.

IV, p. 698-99) Mr. Patterson testified, “I really regret him being gone because he

was a very good friend of mine.” (T Vol. IV, p.786)

The State put on evidence of Mr. Patterson’s status of his license to drive on

14 June 2007 and his prior traffic-related offenses through North Carolina Division

of Motor Vehicles Inspector Ronald Barnes. (R pp. 65-84; T Vol. III, p. 611; T

Vol. IV, pp. 673-84)

Additional facts are presented as they are relevant to the arguments below.

ARGUMENT

I. THE TRIAL COURT COMMITTED PLAIN ERROR IN ADMITTING STATE’S EXHIBIT NO. 19 AND RELATED TESTIMONY WHERE THE PROBATIVE VALUE OF THIS EVIDENCE WAS SUBSTANTIALLY OUTWEIGHED BY THE DANGER OF UNFAIR PREJUDICE, CONFUSION OF THE ISSUES, OR MISLEADING THE JURY, AND WAS NOT A PROPER BASIS FOR AN EXPERT OPINION IN VIOLATION OF MR. PATTERSON’S STATE AND FEDERAL RIGHTS.

ASSIGNMENT OF ERROR Nos. 3, 14R p. 170; Addendum to the Record on Appeal p. 1

A. Statement of Standard of Review.

The admissibility of evidence at trial is a question of law and is reviewed de novo. State v. Wilkerson, 363 N.C. 382, 434, 683 S.E.2d 174, 205 (2009). When a defendant fails to object at trial to the improper admission of evidence, the reviewing court determines if the erroneously admitted evidence constitutes plain error. State v. Locklear, 172 N.C. App. 249, 259, 616 S.E.2d 334, 341 (2005). Plain error is a “fundamental error, something so basic, so prejudicial, so

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lacking in its elements that justice cannot have been done.” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002, cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)) (emphasis in original). In determining whether the error rises to plain error, the appellate court examines the entire record and decides whether the "error had a probable impact on the jury's finding of guilt." Id. at 661, 300 S.E.2d at 379.

State v. McLean, ___ N.C. App. ___, ___, ___ S.E.2d ___, ___, 2010 N.C. App.

LEXIS 1147, *3-4 (No. COA09-1602) (filed 6 July 2010). Mr. Patterson

specifically alleged plain error in assigning error to the admission of State’s

Exhibit No. 19 and the improper related opinion testimony. N.C.R. App. P. 10(c)

(4) (2007). This issue is properly before this Court.

B. Analysis.

Blood was drawn from Mr. Patterson and sent to the SBI for analysis. (R pp.

63-64; T Vol. III, pp. 493-94, 502-14; see Appendix) In the opinion of SBI Special

Agent Farren, the alcohol concentration was 0.14 grams of alcohol per 100

milliliters of whole blood. (R p. 62; T Vol. III, p. 523; see Appendix) Special

Agent Farren’s laboratory report was marked as State’s Exhibit No. 19, and

admitted into evidence without objection. (T Vol. III, pp. 524-25; see Appendix)

Without objection, Mr. Glover used the laboratory report to form an opinion that

Mr. Patterson’s alcohol concentration was 0.19 at the time of the collision. (T Vol.

III, pp. 534-39; see Appendix) It was plain error to admit State’s Exhibit No. 19

and Special Agent Farren’s opinion where the probative value of this evidence was

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substantially outweighed by the danger of unfair prejudice, confusion of the issues,

or misleading the jury. It was plain error to admit the opinion testimony of Mr.

Glover that relied on the prejudicial State’s Exhibit No. 19 which was not a proper

basis for an expert opinion.

Mr. Patterson was charged with second-degree murder, felony serious injury

by vehicle, and driving while impaired. As set out in the second issue presented,

the State needed to prove that Mr. Patterson was driving while impaired to support

each of these charges under the facts of this case. Therefore, whether Mr. Patterson

had a sufficient alcohol concentration to be legally impaired was relevant. The

evidence introduced by the State, to show Mr. Patterson’s alcohol concentration,

however, was substantially outweighed by the danger of unfair prejudice, and

should have been excluded pursuant to N.C. Gen. Stat. § 8C-1, Rule 403.

The State needed to prove that Mr. Patterson was driving: “After having

consumed sufficient alcohol that he has, at any relevant time after the driving, an

alcohol concentration of 0.08 or more.” N.C. Gen. Stat. § 20-138.1(a)(2). “Any

relevant time” is defined as: “Any time after the driving in which the driver still

has in his body alcohol consumed before or during the driving.” N.C. Gen. Stat. §

20-4.01(33a). The Supreme Court of North Carolina has held that this definition is

not unconstitutionally void for vagueness. State v. Rose, 312 N.C. 441, 323 S.E.2d

339 (1984). As acknowledged by this Court, however, the Supreme Court of the

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United States has “noted that alcohol and other drugs are eliminated from the blood

stream in a constant rate, creating an exigency with regard to obtaining samples

thereby relieving the officers of the need to obtain search warrants.” State v. Davis,

142 N.C. App. 81, 86-87, 542 S.E.2d 236, 239 (2001) (citing Schmerber v.

California, 384 U.S. 757, 770, 16 L. Ed. 2d 908, 920 (1966)). Indeed, the State

continues to assert that warrantless blood draws are needed because of this

exigency. E.g., Brief for the State, State v. Fletcher, No. COA09-926, at 7-13.2

(See Appendix)

This Court has recognized that this exigency affects the timeliness of a blood

draw, and held that a delay of more than three hours “rendered the blood test too

remote in time from defendant’s arrest to be admissible.” State v. Verdicanno, No.

COA99-1086, 137 N.C. App. 589, slip op. at 6. (filed 18 April 2000) (unpublished

opinion; see Appendix). As an unpublished opinion, Verdicanno has limited

precedential value. N.C.R. App. P. 30(e)(3). Nonetheless, Verdicanno is instructive

as there is a dearth of North Carolina cases discussing whether the particular length

of time at issue here between drinking and the blood draw renders the blood draw

too remote in time to be admissible.

2 North Carolina appellate courts may take judicial notice of their own records including briefs. Swain v. Creasman, 260 N.C. 163, 164, 132 S.E.2d 304, 405 (1963); see also, State v. Ward, 338 N.C. 64, 127, 449 S.E.2d 709 (1994), cert. denied, 514 U.S. 1134, 131 L. Ed. 2d 1013 (1995) (judicial notice taken of filings in co-defendant’s case); Alford v. Shaw, 327 N.C. 526, 541, 398 S.E.2d 445 (1990) (judicial notice taken of briefs filed in appeal of earlier judgment). Defendant respectfully requests that this Court take judicial notice of the briefings by the parties in State v. Fletcher, No. COA09-926.

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The evidence that the last time Mr. Patterson had drunk any alcoholic

beverage was prior to 9:00 p.m., and may have been closer to 5:30 or 6:00 p.m. (T

Vol. II, pp. 414-16; T Vol. IV, pp. 703, 744-47, 775-76; see Appendix) The

collision happened sometime between 9:00 and 9:35 p.m. (T Vol. II, pp. 269, 395,

416; T Vol. IV, pp. 703, 726, 747, 775-77, 779; see Appendix) The blood draw

was at 12:44 a.m., over three hours after the collision, and somewhere over three to

seven hours after Mr. Patterson last drank a beer. (T Vol. III, p. 508; see Appendix)

As consistently argued by the State and upheld by the Courts, there is an

exigency to obtain blood samples from individuals that are suspected to have

ingested impairing substances. Alcohol and other impairing substances are

eliminated from the blood stream over time. Because of this recognized exigency,

“at any relevant time” cannot mean “at any time” without limitation. As this Court

recognized in Verdicanno, supra, a delay of more than three hours renders a blood

draw too remote in time to be admissible. This Court has also held that an officer

had a reasonable belief that a delay of two to three hours “would result in the

dissipation of the alcohol in defendant's blood and that exigent circumstances

existed that allowed a warrantless blood draw.” State v. Fletcher, ___ N.C. ___,

___, 688 S.E.2d 94, 98 (2010).

The delay until the blood draw in the case sub judice was at least as long if

not longer than the delays in Fletcher and Verdicanno. Mr. Glover testified that

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“there was a significant time lapse between the time of the crash and the time of

the blood collection.” (T Vol. III, p. 534; see Appendix) The three to seven hour

delayed blood draw was too remote to be admissible.

It was error to admit the opinion testimony of Mr. Glover based on this

remote blood draw. It is true that an expert may form an opinion based on evidence

that may not otherwise be admissible, but such evidence must be “of a type

reasonably relied upon by experts in the particular field in forming opinions or

inferences upon the subject.” N.C. Gen. Stat. § 8C-1, Rule 703. Mr. Glover was

tendered and received as an expert in the field of blood alcohol testing, blood

alcohol physiology, and blood alcohol pharmacology, and formed an opinion upon

the subject of retrograde extrapolation. (T Vol. III, pp. 532-35; see Appendix) The

North Carolina Courts have not ruled whether a blood draw too remote in time to

be admissible is evidence reasonably relied upon by experts in the field of blood

alcohol testing, blood alcohol physiology, and blood alcohol pharmacology in

forming opinions upon the subject of retrograde extrapolation.

The remoteness of a blood draw is a crucial factor to forming an opinion of

blood alcohol concentration based upon retrograde extrapolation. This is because

experts in the field are aware that “the potential rate of error increase[s] as time”

passes. Mata v. State, 46 S.W.3d 902, 912 (Tex. Cr. App. 2001), overruled on

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other grounds by Bagheri v. State, 87 S.W.3d 657, 660-61 (Tex. App. 2002). As

the Texas Court set out:

The court evaluating the reliability of a retrograde extrapolation should also consider (a) the length of time between the offense and the test(s) administered; (b) the number of tests given and the length of time between each test; and (c) whether, and if so, to what extent, any individual characteristics of the defendant were known to the expert in providing his extrapolation. These characteristics and behaviors might include, but are not limited to, the person's weight and gender, the person's typical drinking pattern and tolerance for alcohol, how much the person had to drink on the day or night in question, what the person drank, the duration of the drinking spree, the time of the last drink, and how much and what the person had to eat either before, during, or after the drinking.

Mata, supra, 46 S.W.3d at 916.

In the case sub judice, one of the few things known to Mr. Glover was that

there was significant time lapse between the time of the collision and the blood

draw. Mr. Glover was unaware of how much longer, even, the time lapse might

have been between the time of Mr. Glover’s last drink and the blood draw. Mr.

Glover was also unaware of any other individual characteristics of Mr. Patterson.

All that Mr. Glover relied upon was an inadmissible laboratory report based on the

delayed blood draw, a time the collision was reported to NCHP, and the “average

value of the rate of elimination of alcohol from humans.” (T Vol. III, pp. 534-35;

see Appendix) Mr. Glover’s testimony was not based upon the type of evidence

reasonably relied upon by experts in the field of blood alcohol testing, blood

alcohol physiology, and blood alcohol pharmacology in forming opinions upon the

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subject of retrograde extrapolation. Mr. Glover’s testimony should have been

excluded.

The dissipation of an impairing substance in a defendant’s blood is not the

only reason a significant time lapse of over three hours renders a delayed blood

draw inadmissible. As in the case sub judice, the delay leaves time for intervening

events that compromise the blood sample. Between the time of the collision and

the blood draw, Mr. Patterson received some medical treatment. At the very least,

Mr. Patterson was given intravenous (IV) therapy through his arm in the

ambulance. (T Vol. II, p. 400-01; 409-10; T Vol. IV, p. 758; see Appendix) As the

defense argued, Mr. Patterson’s arm would be have been sterilized with alcohol

prior to the IV insertion of the needle. (T Vol. V, p. 886; see Appendix) There may

well have been additional treatment during this significant time lapse that could

have compromised the blood sample. (T Vol. V, p. 887; see Appendix) Even if he

were qualified, Mr. Patterson himself could not definitively testify as to what

treatment he received as he was in an out of consciousness. (T Vol. II, pp. 333,

349; see Appendix) Even if they were qualified, Troopers Dees and Smith testified

they did not know whether or not Mr. Patterson had received any treatment prior to

the blood draw. (T Vol. II, pp. 349-50; T Vol. III, pp. 515-16; see Appendix) No

one who treated Mr. Patterson at the hospital was called to testify. Ms. Watkins

was the only hospital medical employee who testified as to Mr. Patterson. Ms.

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Watkins was not involved in his treatment, could not identify Mr. Patterson, does

not know how long Mr. Patterson was in the hospital before she drew his blood,

could not remember when in her shift she drew blood from Mr. Patterson, and

could only assume that Mr. Patterson had not received treatment because Mr.

Patterson was asking for help with his pain. (T Vol. III, pp. 492-97; see Appendix)

Admitting State’s Exhibit No. 19 and the related testimony of Special Agent

Farren and Mr. Glover was fundamental error. As set out in the second issue

presented, whether Mr. Patterson was driving while legally impaired was an

essential element of the charges of second-degree murder, felony serious injury by

vehicle, and driving while impaired. The admission of State’s Exhibit No. 19 and

the related testimony denied Mr. Patterson a fair trial and had a probable impact on

the jury’s finding that Mr. Patterson was guilty. State v. Odom, supra, 307 N.C. at

660-61, 300 S.E.2d at 378-79. Mr. Patterson’s convictions must be vacated.

II. MR. PATTERSON’S CONVICTIONS FOR INVOLUNTARY MANSLAUGHTER, FELONY SERIOUS INJURY BY VEHICLE, AND DRIVING WHILE IMPAIRED MUST BE VACATED BECAUSE THE EVIDENCE HE WAS UNDER THE INFLUENCE OF AN IMPAIRING SUBSTANCE WAS INSUFFICIENT AS A MATTER OF LAW AND FACT AND THE TRIAL COURT COMMITTED ERROR IN NOT GRANTING THE MOTIONS TO DISMISS AND SUBMITTING THE CHARGES TO THE JURY IN VIOLATION OF MR. PATTERSON’S STATE AND FEDERAL RIGHTS.

ASSIGNMENT OF ERROR Nos. 7, 14R p. 172; Addendum to the Record on Appeal p. 1

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A. Statement of Standard of Review.

In ruling upon a motion to dismiss, the trial court must examine the evidence

in the light most favorable to the State, giving the State the benefit of all

reasonable inferences which may be drawn from the evidence. State v. Kemmerlin,

356 N.C. 446, 573 S.E.2d 870 (2002). The trial court determines whether there is

substantial evidence of each essential element of the offense charged and of the

defendant being the perpetrator of the offense. Id. at 473, 573 S.E.2d at 889.

Substantial evidence is relevant evidence that a reasonable mind might accept as

adequate to support a conclusion. Id. Whether the evidence presented was

substantial is a matter of law. State v. Nettles, 170 N.C. App. 100, 103, 612 S.E.2d

172, 174, disc. review denied, 359 N.C. 640, 617 S.E.2d 286 (2005). Questions of

law are reviewed de novo. Staton v. Brame, 136 N.C. App. 170, 174, 523 S.E.2d

424, 427 (1999). Under a de novo standard of review, the reviewing court

considers the matter anew and freely substitutes its own judgment for that of the

lower court. N.C. Dep’t of Env’t & Natural Res. v. Carroll, 358 N.C. 649, 660, 599

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

B. Analysis.

Mr. Patterson’s motions to dismiss the charges were denied. (T Vol. IV, pp.

732-34; 789) It was error for these motions to be denied and for the charges of

second-degree murder, felony serious injury by vehicle, and driving while

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impaired to be submitted to the jury. There was insufficient proper evidence that

Mr. Patterson was legally impaired at any relevant time after the driving.

Mr. Patterson was convicted of involuntary manslaughter, two counts of

felony serious injury by vehicle, and driving while impaired. Under the facts of this

case, to support each of these convictions, the State needed to prove that Mr.

Patterson was driving while legally impaired. State v. Jones, 353 N.C. 159, 165,

538 S.E.2d 917, 923 (2000) (violation of N.C. Gen. Stat. § 20-138.1 supports

culpable negligence element of involuntary manslaughter); State v. Mumford, ___

N.C. App. ___, ___, 688 S.E.2d 458, 465 (“To convict a defendant of felony

serious injury by a vehicle, the defendant must also be guilty of driving while

impaired.”), stay granted, 363 N.C. 809, 690 S.E.2d 528 (2010); N.C. Gen. Stat. §§

14-18, 20-138.1, 20-141.4(a3). Specifically, to sustain each of these convictions,

the State needed to prove that Mr. Patterson was driving: “After having consumed

sufficient alcohol that he has, at any relevant time after the driving, an alcohol

concentration of 0.08 or more.” N.C. Gen. Stat. § 20-138.1(a)(2).

As to the element of whether Mr. Patterson was driving while impaired, the

jury was instructed they should find Mr. Patterson guilty of second-degree murder

or the lesser included offense of involuntary manslaughter, felony serious injury by

vehicle, and driving while impaired if “he was under had consumed sufficient

alcohol that at any relevant time after the driving the defendant had an alcohol

- 24 -

concentration of 0.08 or more grams of alcohol per 100 milliliters of blood.” (R pp.

93-94, 97-109; T Vol. V, pp. 908-09, 912-24) As set out in the first issue

presented, the evidence submitted by the State to support that Mr. Patterson had an

alcohol concentration of 0.08 or more was unfairly prejudicial and inadmissible.

State v. Verdicanno, supra; N.C. Gen. Stat. § 8C-1, Rule 403.

The only other potential evidence of impairment was the opinion of Trooper

Dees. Based upon the odor of alcohol, glassy eyes that could have been caused by

the collision, unopened beer cans, and statements by a man in and out of

consciousness, Trooper Dees formed the opinion that Mr. Patterson was impaired.

(T Vol. II, pp. 302-03, 332, 334, 348-51; see Appendix) This opinion testimony

was insufficient evidence of impairment. State v. Rich,351 N.C. 386, 397-98, 527

S.E.2d 299, 305 (2000); State v. Mark, 154 N.C. App. 341, 346, 571 S.E.2d 867,

871 (2002), aff'd, 357 N.C. 242, 580 S.E.2d 693 (2003); State v. Gregory, 154 N.C.

App. 718, 721, 572 S.E.2d 838, 840 (2002).

It was error for the motions to dismiss the charges of second-degree murder,

felony serious injury by vehicle, and driving while impaired to be denied. There

was not substantial evidence of the essential element of driving while impaired.

Mr. Patterson’s convictions and sentences for involuntary manslaughter, two

counts of felony serious injury by vehicle, and driving while impaired should be

vacated.

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CONCLUSION

For all the foregoing reasons, Mr. Patterson respectfully contends his

convictions and sentences must be vacated.

Respectfully submitted this the 29th day of July 2010.

By electronic submissionAnne BleymanAttorney for Defendant-Appellant1818 Martin Luther King, Jr. Blvd.,Suite 146Chapel Hill, North Carolina 27514-7415(919) 593-0782N.C. State Bar No. 20860ABTigerLaw@earthlink.net

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CERTIFICATE OF COMPLIANCE WITH N.C.R. APP. P. 28(j)(2)(A)(2)

The undersigned hereby certifies that this Defendant-Appellant’s Brief is in compliance with Rule 28(j)(2)(A)(2) of the North Carolina Rules of Appellate Procedure in that it is printed in 14 point Times New Roman font and contains no more than 8,750 words in the body of the Brief, footnotes and citations included, as indicated by the word-processing program used to prepare the Brief.

This the 29th day of July 2010.

By electronic submissionAnne BleymanAttorney for Defendant-Appellant

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CERTIFICATE OF FILING AND SERVICE

The undersigned hereby certifies that the original Defendant-Appellant’s Brief has been filed pursuant to Rule 26(a)(2) of the North Carolina Rules of Appellate Procedure by electronic means with the Clerk of the North Carolina Court of Appeals.

The undersigned further certifies that the foregoing Defendant-Appellant’s Brief has been served pursuant to Rule 26(c) of the North Carolina Rules of Appellate Procedure by electronic means upon the following parties:

Mr. Christopher W. BrooksAssistant Attorney GeneralNorth Carolina Department of JusticeCrime Control Section9001 Mail Service CenterRaleigh, North Carolina 27699-9001919-716-6500N.C. State Bar No. 25298CBROOKS@ncdoj.gov

This the 29th day of July 2010.

By electronic submissionAnne BleymanAttorney for Defendant-Appellant

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Table of Contents for Appendix

Appendix Pages Appearing in brief at

1-10 State v. Fletcher, No. COA09-926Brief for the State(cover, index, and pp. 6-13) 17

11-16 State v. Verdicanno,No. COA99-1086,137 N.C. App. 589(filed 18 April 2000)(unpublished opinion) 17-19, 25

17 Direct Examination Testimony ofJames L. Brown(T Vol. II, p. 269) 18

18-23 Direct Examination Testimony ofAnthony Dees(T Vol. II, pp. 301-03, 332-34) 21, 25

24-28 Cross Examination Testimony ofAnthony Dees(T Vol. II, pp. 347-51) 21-22, 25

29-35 Direct Examination Testimony ofSabrina Elliot(T Vol. II, pp. 394-95, 398-402) 18, 21

36-37 Cross Examination Testimony ofSabrina Elliot(T Vol. II, pp. 409-10) 21

38-40 Direct Examination Testimony ofRoger Marsh(T Vol. II, pp. 414-16) 18

41-42 Direct Examination Testimony of

Emily Watkins(T Vol. III, pp. 492-93) 15, 22

43-46 Cross Examination Testimony ofEmily Watkins(T Vol. III, pp. 494-97) 22

47-60 Direct Examination Testimony ofJoshua Smith(T Vol. III, pp. 501-14) 15

61-62 Cross Examination Testimony ofJoshua Smith(T Vol. III, pp. 515-16) 21-22

63-65 Direct Examination Testimony ofLinda E. Farren(T Vol. III, pp. 523-25) 15-16

66-71 Direct Examination Testimony ofPaul L. Glover(T Vol. III, pp. 532-37) 16, 19-21

72-73 Cross Examination Testimony ofPaul L. Glover(T Vol. III, pp. 538-39) 16

74 Direct Examination Testimony ofKevin Jones(T Vol. IV, p. 703) 18

75 Direct Examination Testimony ofMicaela Jaramillo Navarette(T Vol. IV, p. 726) 18

76-80 Direct Examination Testimony ofMorris Clem Patterson(T Vol. IV, pp. 744-47, 758) 18, 21

81-83 Cross Examination Testimony of

- ii -

Morris Clem Patterson(T Vol. IV, pp. 775-76, 779) 18

84-85 Defendant’s Closing Argument (T Vol. V, pp. 886-87) 21

- iii -

1