[2] For the sake of brevity, the individuals who purported to evaluate the children for abuse will be referred to herein as "therapists." This is not a concession that these individuals provided therapy. To the contrary, their primary function was to investigate and verify accusations of abuse for the prosecution. (Tp 15,658)

[3] Another physician, Doren Frederickson, "diagnosed" several children as having been abused even though he saw no physical evidence of abuse at all. See Issue VII.

[4] The state countered that the physical evidence was too "subtle" to show up in the photographs given to the defense, and argued that the jury should believe the state's witnesses because they had actually examined the children. (Tp. 21,686, 21,768) See Issue VI.

[5] Dr. Smith examined one girl in July, 1989, another in October, 1989, and the third in November, 1989. (Tpp. 13197-13302) Dr. Runyan examined one of the girls in August, 1989. (Tp. 13640) Mr. Kelly had no contact with any of the day care children after January, 1989, and the day care closed in April, 1989. (Tp. 18264)

[6] The rumor in Edenton was that the Harrisons left the day care business, and Edenton, after a disagreement with one of the parents, Jane Mabry, over their treatment of her son. (Tpp. 17,792, 17,796)

[7] Most of the children were spending most of their day in day care. For instance, Alex Bean would be dropped off at the Little Rascals about 7:30 in the morning, and not picked up until after 5:30. (Tp. 10,080) Beth Bateman had to be awakened at 5:30 a.m. in order to be left at the day care in time for her parents to get to work. (Tp. 11,542)

[8] After the Department of Social Services (hereinafter "DSS") "substantiated" abuse at the day care, Ms. Stever, like many other parents, began keeping a journal at the request of the police. The journal was intended to be a record of what the children said about Bob Kelly or the day care. Ms. Stever began her journal on February 2, 1989. (Tp. 3462) Other parents did not start journals until several months later. Susan Small, for instance, did not begin her journal until May, 1989. (Tp. 7876-7878)

[9] Jackie Partin's child, "R.H.," was not one of the twelve "trial children." Defendant tried unsuccessfully to obtain the results of interviews and examinations of "R.H." and the other children who had been interviewed. See Issues I-V.

[10] Dr. Shopper was qualified by the court as an expert in child and adult psychiatry. (Tp. 19,635)

[11] Dr. Raskin was qualified by the court as an expert in forensic psychology, interviewing children and the assessment of child sexual abuse. (Tp. 15,650)

[12] Dr. Raskin distinguished between a forensic interviewer and a therapist. A therapist is usually not concerned with the objective "truth" of whether or not the child has been abused. Rather, a therapist attempts to treat the child's emotional problems with no particular regard for their source. It is the forensic interviewer who tries to determine whether or not the child has indeed been abused in the way he or she claims. Dr. Raskin did not consider any of the persons who interviewed the children here to be therapists or forensic interviewers. They did not provide therapy, and could not determine the truth of the allegations. (Tpp. 15,658-15,659)

[13] Several parents were given books to read to their children. These books were aimed at encouraging the children to "disclose." In most instances the books were given to the parents by one of the four therapists who were involved in the case. In some instances, parents shared them with each other. One of the grandparents, "Nonna" Wilkins, made up her own "therapeutic stories" about the Kellys. (Tpp. 4380-84) It is not clear whether or not Ms. Stever was reading Kyle such a book when she began this interview.

[14] The parent journals, including Ms. Stever's, usually do not record questions and answers, but only summaries of "disclosures" made by the children. In many instances, the children did not say anything at all, but rather nodded when the adult suggested a "disclosure." (E.g., Tpp. 10,070) This would then be reported as if the child had said it.

[15] Ms. Stever also remembered a time in November when Kyle's rectum was itching so bad that he asked her to put her finger in it. Ms. Stever assumed at the time that this was a sign of pinworms, a common complaint of children in day care. (Tp. 3448) Later, of course, this incident took on sinister implications. Dr. John Brigham testified that such reconstruction is a typical reaction to the hysterical fear of sexual abuse. (Tpp. 18,936-18,995)

[16] Alex's father, who was Mr. Kelly's lawyer, did not find out that Alex had been "named" until April. (Tp. 10,058) At that point, Mr. Bean began assisting the prosecutor. See Issue IX.

[17] It is not clear from the testimony whether Ms. Stever told the Culpeppers that their son had been named by Kyle as having been abused. The state did not call Gardner, and the charges related to him were dismissed. The defense was denied access to the therapists notes and the Culpepper's journal, if any, on Gardner. See Issues I-V.

[18] After trial, a portion of an interview of one of the children from the Little Rascals, conducted by Ms. Toppin, was discovered by the defense. This tape reveals that Ms. Toppin, on at least that occasion, engaged in highly suggestive, coercive techniques. Moreover, the tape shows that, contrary to Ms. Toppin's testimony, it was Ms. Toppin who manipulated the dolls while questioning the boy. A transcript of the portion of the interview is provided for the convenience of the Court in the Appendix. Because it was prepared by appellate counsel, the Court is urged to listen to the tape itself, which has been transmitted to the Court in Defendant's Exhibit No. 256. Because this tape was not disclosed to the defense by the state, and not discovered until after trial, the defense experts were not in a position to show the jury how Ms. Toppin misused the dolls. To date, no tape of interviews with Kyle have come to light. Moreover, because the defendant's subpoenas duces tecum for Ms. Toppin's notes were quashed, Ms. Toppin did not bring them to court with her. See Issues I-V.

[19] As the investigation spread, more and more unlikely victims were discovered. Infants, children who had not attended the day care for several years, and children who only attended a few times were suspected of having been abused. Another child, Keith Harris, never attended the day care. His mother, Darlene Harris and her boyfriend, Bruce Bunch, were eventually indicted as having participated in sexual abuse.

[20] Ms. Brooks testified that she also told Ms. Davenport about Dan complaining of a red bottom. However, the report from Mental Health made no mention of such complaints. (Tpp. 5012-5015) Dr. John Brigham testified that such reconstruction is a typical reaction to the hysterical fear of sexual abuse. (Tpp. 18,936-18,995)

[21] Brenda Toppin's version of this "disclosure" was that Dan said he had a "bad secret." (Tp. 12,504) Dr. Raskin testified to the phenomenon of children's stories being contaminated over time by suggestive interviewing techniques. (Tp. 16,438-16,446)

[22] Dr. Raskin testified about the dangers inherent in having parents do forensic interviewing. Because of their poor training and emotional involvement, the results of their interviews are unlikely to be reliable. What is worse, they are likely to contaminate subsequent interviews. (Tp. 15,655)

[23] Most of the children who were the subject of this case were in Shelly Stone's room. At first, most claimed that they were abused by the defendant while Shelly was gone. Eventually, several implicated "Miss Shelly" in abuse.

[24] Dr. Raskin termed this interview technique "bizarre" and "almost abusive." (Tp. 15,747) He added that late night interviews of young children yield unreliable results. (Tp. 15,772)

[25] Dr. Shopper noted that there were many other instances where interviewers failed to clarify whether a child was reporting something he had actually seen, or merely been told by another child. (Tp. 19,734)

[26] Dr. Shopper testified that there was no support for this diagnosis. (Tp. 19,709) He testified that Nurse Zimmerman "rushed to judgment." (Tp. 19,728)

[27] Dr. Raskin noted that this technique put undue pressure on Dan to make a "disclosure." (Tp. 15,862)

[28] Telling a child that he is a "police helper," "super helper," "special helper," etc. can have the effect of encouraging false accusations. (Tpp. 15,862, 15,789, 19,741, 19,785)

[29] There are numerous instances where parents would read in the newspaper, or hear from one another, about something a child is supposed to have said, e.g. abuse on a boat, the defendant dressing as Santa Claus, children being given pills, and then begin questioning their children about these matters. Dr. Raskin testified to the impropriety of an interviewer using such information from other sources to question a child. (Tpp. 16,438, 16,446) Dr. Brigham testified to the process of "rumor transmission." (Tp. 18,931)

[30] Ginny was one of the original "indictment children." There is a file on Ginny Parrish in the sealed materials transmitted to this Court. If Ginny denied having been taken upstairs with Brian and Timothy Farless, or contradicted what Brian said about upstairs, the defendant should have received these prior statements. See Issues I-V.

[31] Upon information and belief, there is no folder on Timothy Farless. Because defendant's subpoenas on materials collected on Timothy were quashed, there is no way now to know what, if anything, Timothy said about being upstairs. See Issues I-V.

[32] Many parents, including Ms. Swicegood, testified that they tried not to ask their children "leading questions." It is not clear at all that the parents knew the difference. For examples of questions that parents considered to be "non-leading," see Tpp. 3657-3658, 4551, 4991, 5003-5006, 10,072-10,074. One parent, Julie Spivey, frankly admitted that if she needed to ask leading questions in order to find out what she wanted to know, she would. (Tp. 5668)

[33] Dr. Raskin testified to the traumatic effect of such interviews. (Tpp. 15,774, 15,796)

[34] Ms. Phillips' son, Dan, was named in an indictment but did not testify. The defense tried in vain to get information collected by the prosecutor on Dan.

[35] Dr. Raskin testified that improper interviewing can make children "hyper." Moreover, the fact that a child is "hyper" during an interrogation is not an indication that he has been abused. (Tpp. 15,774, 15,796)

[36] Since some of Ms. Hollowell's notes are in the third person, it is apparent that these are not Will's words. but rather her own. Other adults testified that they reported allegations that their children agreed to as if the children had themselves said the words. E.g. Tp. 16,663.

[37] Stan Settle did not testify. The defense subpoenaed the material collected on him by the prosecution. These subpoenas were quashed. There is no way now to know what if anything Stan had to say about this incident. See Issues I-V.

[38] At about the same time, Marjorie Hollowell, Peggy Brooks and Emily Layton told the Beans that their children said that Alex was involved. (Tpp. 4883, 10,058, 10,059)

[39] Dr. Raskin testified that it is very bad practice to interview young children late at night. (Tp. 15,772)

[40] As argued in Issues I-V, the State prevented the defense from getting any information on Ashley Twiddy. Because she did not testify, there is no way to know what she said about this incident.

[41] There was testimony that children were abused not only at both day cares, but on boats, in the woods behind the Winn-Dixie; in offices, in tunnels, in various houses, on hot air balloons, in space ships, in airplanes and in motels.

[42] Her mother would sometimes arrive unannounced as early as 2:30 to pick Beth up. (Tp. 11,537)

[43] Frankie's mother testified for the defense. There was no evidence that Frankie was abused.

[44] Neither Paige nor her parents testified. The defendant issued subpoenas for materials collected by the state on Paige. However, these were quashed. See Issues I-V. As a result, the record does not show what, if anything, Paige said about these allegations.

[45] After Dr. Smith "diagnosed" Beth as having been abused, Ms. Bateman felt that many of Beth's medical problems had been related to abuse at the day care. (Tp. 11,595, 11,629) This despite the medical record of such problems dating back to 1985. (Tpp. 11,564-11,567)

[46] Ginna Forward's mother, Patricia Kephart, was dating Special Deputy Attorney General William P. Hart during the trial, and has since married Mr. Hart. The defense subpoenaed interview notes on Ginna. The subpoenas were quashed. Because Ginna was not called as a witness, the defense never received the notes. The notes would likely contain useful impeachment material. They were sealed by the trial court and are before this Court for appellate review. See Issue I.

[47] Defendant tried unsuccessfully to get prior statements made by Katie. See Issues I-V.

[48] She began a program of "reteaching" the boys about morals and God. (Tp. 10,438) There are other examples of adults taking it upon themselves to provide "therapy" for the children. "Nonna" Wilkins wrote "therapeutic stories" for Brian. (Tpp. 4380-4384) Chris Bean took children to the jail to see how securely Bob Kelly was locked up. (Tp. 10,331)

[49] In her testimony, Ms. Spruill said that she actually did not believe some of the "fantasy" stories that the boys told. She explained how she could read the "body language" of the boys to determine whether they were telling a fantasy or something that they had "lived." (Tpp. 10,468-469) See Issue VIII.

[50] Both Dr. Raskin and Dr. Shopper testified that the school psychologist's use of this "homework" technique was inappropriate. (Tpp. 15,961, 19,655)

[51] Ms. Bean was also telling Dr. Robertson rumors she had heard about the Little Rascals. (Tp. 10,193)

[52] Ms. Hollowell testified that in September of 1989, Betsy Kelly was jailed. She asked Will if Betsy should be in jail. Will told her yes; that Betsy Kelly did bad things. Ms. Hollowell asked Will "Did she touch you?" Will said "Yes." Ms. Hollowell asked where. Will said "on my peenie."

[53] Dan told of being taken to a house. Ms. Hollowell took Will for a drive to find it. Will directed her toward Riverton. (Tp. 6591) According to Ms. Hollowell, Scott Privott lives in Riverton. (Tp. 6591)

[54] Ms. Hollowell testified that Shelly continued to take care of Will after he left the day care until the 11th or 12th of June. Ms. Hollowell became aware that there were rumors about Shelly Stone having been involved in the abuse. (Tp. 6682) She told Betty Robertson, in Will's presence, about the rumors against Shelly. On July 4, 1989, Will said that Shelly did "mean things." (Tp. 6683)

[55] Ms. Hollowell testified that Will said that "Officer Tim" guarded him and Anne in jail at the day care. (Tp. 6838) Officer Hickman assisted Brenda Toppin in the investigation of the case, and has apparently not yet been indicted. (Tp. 8660)

[56] Most of the children testified to being on some sort of boat. They disagreed widely, however, about whether it was a sailboat, fishing trawler, house boat or row boat.

[57] Jonathan never attended the day care.

[58] At the height of the investigation the children were accusing dozens of people of being involved in abuse at the day care including all of the following: Robert Kelly, Betsy Kelly, Bobby Kelly, Brenda Ambrose, Betty Phillips, Cindy Barnes, Shelly Stone, Dawn Wilson, Robin Byrum, Kevin Byrum, Darlene Harris, Lisa Schultheiss, Bruce Bunch, Nancy Smith, Jimmy Smith, Scott Privott, Mrs. Privott, John Phillips, Tim Hickman, Debbie Riddick, Jonathan Winslow, Jason Potts, Kenny Valentine, and several people identified only by first name or description: the Chowan County Sheriff, a black man who worked at the Shell gas station, black Miss Debbie, Black Andre, White Andre, Chris, Dave, Mr. Jay, black man who sold balloons on the street, a black haired man with a mustache, dark skinned strangers with black hair and mustaches, Brownie, the Joker, and Mr. Popsicle Head. This is just from the material that was revealed on the twelve trial children.

[59] Ms. Stever testified that, by September, 1989 her son Shane, who had been an infant while attending the Little Rascals, was beginning to make allegations against "Mr. Bob." (Tp. 3633)

[60] Ms. Bean testified that Alex said he was shut in a refrigerator on November 16 with Will and Richard. (Tpp. 10,200-201) Neither Will nor Richard testified that this happened.

[61] The origin of this testimony was this: While the two brothers were taking a bath, Ms. Bean saw Alex starting to put a toy cowboy in Stuart's rectum. (Tp. 10,193) She thought that this meant that somebody did that to Alex. (Tp. 10,195) Accordingly, she asked Alex if anyone had done that. (Tp. 10,195)

[62] In fact, Keith was never enrolled at the Little Rascals. Because Keith did not testify, the defense was not able to get any information on what he had to say about these allegations. See Issues I-V.

[63] "This is ugly, ugly Bob. He did bad things to children, but Bob can't hurt children anymore because he is in jail. Now all the children can laugh again because Mr. Bob is in jail. All the mommies and daddies can laugh now because Mr. Bob is in jail." (Tp. 4381)

[64] Ms. de Sante was undergoing extensive psychological therapy at the time, having been diagnosed with a "psychotic personality" disorder. (Tp. 20,476) Her psychiatric problems continued in California, resulting in therapy, hypnosis, etc. (Tpp. 20,703, 20,707)

[65] A thirtieth child, Keith Harris, was named on an indictment, but never attended the day care.

[66] It was only then, long after Josh had left the stand, that the prosecution turned the tape over to the defense. (Tpp. 5970-6016)

[67] So persistent was the defendant in asserting his rights that the state moved for sanctions against his lawyers for continuing to issue subpoenas. See Assignment of Error No. 27, Rp. 622.

[68] The therapy notes provided by the state to counsel in the case of State v. Dawn Wilson were made exhibits. The subjects of these notes are Lauren Smith, Beth Bateman, Betsy Vogedes and Alex Bean. They have been transmitted to the Court. See State v. Wilson (931 SC 1277). The Court may notice that the original notes, which were reduced to two or three page synopses, are hundreds of pages in length.

[69] The sole exception was a brief review of material on Bonner Rawls. The court ruled that there was no exculpatory material in Bonner's file. See Issue I.

[70] On 1 November 1993, the undersigned requested that the box be sealed and transmitted to this Court for purposes of appellate review. The box was sealed by the Clerk of Superior Court for Pitt County, and transmitted to the Clerk of this Court on 19 November 1993.

[71] Although the names of each of these children is in the trial transcript, their statements are not. In order to avoid the possibility of embarrassment to them or their parents, the children will be referred to herein only as "Child No. __." Under separate cover, a letter to the Clerk of Court, and served on the state, contains the actual names of the children.

[72] The material would also have been useful in cross-examining Dr. Runyan. As it was, it was only the defense experts who testified that parents tended to interrogate their children. (Tp. 19, 743)

[73] As a result, Judge Tillery withdrew from the case and was replaced by Judge McLelland. See Appendix.

[74] The defense also sought recordings of interviews under the discovery statutes. See Issue IV.

[75] The defendant continued throughout trial to seek information on the non-testifying children. These motions were denied. Assignments of Error No. 40, 43, 78, 79, 103 His motion to make an in camera showing of the materiality of these documents was also denied. Assignment of Error No. 24.

⁷⁶ Judge Tillery had ordered the state to produce the material so that an in camera review could be conducted pre-trial. This was the law of the case, which should have bound Judge McLelland. See State v. Duvall, 304 N.C. 557, 284 S.E.2d 319 (1981); State v. McClure, 280 N.C. 288, 185 S.E.2d 693 (1972)(error for one Superior Court judge to overrule another on same issue in same case).

[77] Defendant's Motion to Unseal was denied, in violation of his state and federal constitutional rights to present a defense, to due process of law, and to appellate review. U.S. Const. Amend. VI; XIV; N.C. Const. Art. I, +19, 23, 24, 35.

[78] Examples are Timothy Farless, Ashley Birckhead, Stan Settle, R.H. Partin, Justin and Jennie Spruill.

[79] Ms. Toppin testified that she did not have any interviews; that she usually did not record them, and destroyed any recordings she may have had. (Tpp. 12,514, 12,525, 12,669, 12,764)

[80] As argued in Issue IV, this argument is specious.

[81] These subpoenas are a part of the Record on Appeal. (Rp. 658) Examples are included in the Appendix to this Brief.

[82] Note that the defendant was also denied the opportunity to have his experts do their own interviews with the children. See Issue VI.

[83] It is noteworthy that the Attorney General has advised members of the Child Medical Examiner's Office not to tape record interviews of children suspected of being abused. See State v. Figured, No. 9315 SC 539 (Chatham County). (Tpp. 810, 925, 1058)

[84] The state should not have it both ways. If the therapists and parents were collecting information for the benefit of the prosecution, as the defendant argued unsuccessfully, they were agents of the state and the prosecution should have itself disclosed the therapists' recordings and notes. If these persons were not agents of the state, the prosecution had no place representing them in a motion to quash.

[85] The lead prosecutor's personal involvement extended to dating, and then marrying, the mother of one of the alleged victims. His step-daughter is a plaintiff in a class action lawsuit brought against Betsy Kelly. See William Brooks, a Minor, et al v. Elizabeth Twiddy Kelly, 89 CVS 191, 89 CVS 445, 90 CVS 318, 92 CVS 661 (Pasquotank County).

[86] This was made unnecessarily difficult by the conduct of the prosecution. As a result, the defense experts were never given access to all of the interview material available to the state witnesses. See Issues I-V.

[87] A third doctor, Dr. Doren Frederickson, diagnosed sexual abuse on several boys without any physical evidence.

[88] Dr. Brayden was qualified as an expert in child sexual abuse examinations and the interpretation of coloposcopic photographs.

[89] These "histories" were given by the parents to Janet Hadler. Defendant's subpoenas duces tecum for the journals kept by the parents, and the result of Janet Hadler's interviews, were quashed. As a result, the defendant did not receive this material unless and until one of the children testified. The defense has never received most of the interview recordings or notes that the various interviewers made and which were available to the state witnesses. See Issues I-V.

[90] This was a grossly improper argument. See Issue XIII. The state had successfully thwarted the defendant's efforts to subpoena the tapes. See Issue IV.

[91] Dr. Martin Beals had examined Brooke on 15 May 1989 and found no evidence of abuse. Runyan did not review Brooke's medical records. (Tpp. 12,316, 12,320)

[92] The doctor also testified that there is "no cluster of behaviors that is diagnostic for sexual abuse." (Tp. 14,432)

[93] The American Academy of Pediatrics has taken the position that such a diagnosis should never be made in the absence of physical evidence. (Tp. 14,224) This must be, in part, because there is no behavior or "cluster of behaviors that are diagnostic for sexual abuse." (Tp. 14,431)

[94] The state may argue that this Court has allowed similar testimony in State v. Richardson, 112 N.C. App. 58, 434 S.E.2d 657 (1993). However, there was no objection or assignment of error in that case having to do with Dr. Runyan's opinion that the child there had been abused. Rather, the issue in Richardson was whether several witnesses, including Dr. Runyan, should have been allowed to testify to the psychological characteristics of abused children. Accordingly, the defendant in Richardson did not cite this Court to Trent in his Brief, nor does Trent appear in the opinion. The reference by the Court to Dr. Runyan's opinion that the child had been abused is, at most, dictum, and should not control here.

[95] In the interest of brevity, the defendant has summarized the testimony complained of. The Court is urged to read the portions of the transcript referred to in the Assignments of Error.

[96] The notion that there is a common set of identifying characteristics displayed by abused children has been largely discredited as being without empirical support. See People v. Beckley, 456 N.W.2d 391, 406 (Mich. 1990); McCord, Syndromes, Profiles and Other Mental Exotica: A New Approach to the Admissibility of Nontraditional Psychological Evidence in Criminal Cases, 66 O.L. Rev. 19, 41 (1986); Note, The Unreliability of Expert Testimony on the Typical Characteristics of Sexual Abuse Victims, 74 Georgetown L. R. 429, 440 (1985). For this reason, some states have excluded any evidence of such "typical" behaviors. See, e.g., Commonwealth v. Dunkle, 529 Pa. 168, 602 A.2d 830 (1992).

[97] Emily did not testify. Defendant tried unsuccessfully to find out what they actually said. See Issues I-V.

[98] The "real event" the boys described was this: They were "throwing fire" at the defendant upstairs at the day care. They hit defendant with some of the fire, and his shirt caught fire. They screamed for help as loud as they could, but the neighbors could not hear. The defendant then strangled them with a rope so that they could not yell for help any more. (Tp. 10,406) Ms. Spruill testified: "After the conversation I knew that what had happened to the boys was -- was real . . .[MOTION TO STRIKE DENIED] . . . It was my opinion that they had lived it. I knew that they had lived it." [MOTION TO STRIKE DENIED] (Tpp. 10,406-07)

[99] Our Supreme Court has recognized the phenomenon of therapists assuming abuse. See State v. Hall, 330 N.C. at 820; accord State v. Harris, 247 Mont. 495, 808 P.2d 453 (1991); Felix v. State, 849 P.2d 220 (Nev. 1993).

[100] Audrey Stever told Brenda Toppin in January that Kyle named Alex as one of the boys that the defendant "played doctor" with. (Tp. 12,448) The fact that Ms. Toppin waited until April to tell Mr. Bean suggests that the prosecution wanted to allow the attorney-client relationship to develop before recruiting Mr. Bean to assist the prosecution.

[101] See, e.g., "Anguish in Edenton," Charlotte Observer, 21 July 1991. In the article, Mr. Bean claims that Alex "volunteered" that he had been abused. Although he did not repeat what Alex said, he claimed they he was "appalled" at the description of abuse. He said that the descriptions of abuse involving Alex could not be made up by children. He said that he chose to take Alex to Betty Robertson because she would be objective. All of this was designed to create the impression that the defendant was guilty. Much of it was contradicted by the evidence at trial.

[102] In the Charlotte Observer article, Mr. Bean described his August meeting with Mr. Kelly as a "lengthy conversation" about the allegations of abuse. Mr. Bean declined to say what Mr. Kelly said to him about the matter because he intended to testify about the meeting at trial. He thus implied that Mr. Kelly incriminated himself.

[103] It should be noted that Mr. Bean has a financial interest adverse to the defendant's. His son, Alex, is one of the plaintiffs suing Betsy Kelly for money damages. See William Brooks, a Minor, et. al v. Elizabeth Twiddy Kelly, 89 CvS 191, 89 CvS 445, 90 CvS 318, 92 Cvs 661 (Pasquotank County).

[104] Defendant moved pre-trial to prohibit the state from introducing evidence of "bad acts" of the defendant other than the alleged ones for which he was on trial. (Rp. 318) This motion was denied (May, 1990 Hearing at Tp. 194). In the alternative, defendant moved to require the state to disclose such evidence to the defense prior to trial. (Rp. 68) This motion was also denied. (Tp. 2651)

[105] She later moved to California and changed her name for psychotherapeutic reasons. (Tp. 20476)

[106] Ms. de Sante was undergoing extensive psychological therapy at the time, having been diagnosed with a "psychotic personality" disorder. (Tp. 20,476) Her psychiatric problems continued in California. (Tpp. 20,703, 20,707)

[107] It may be noticed that the jurors in this case were persuaded that the defendant was indeed a sociopath and a pedophile. See Defendant's Motion for Appropriate Relief, filed 22 November 1993, and 18 January 1994 Motion Hearing Transcript.

[108] The pertinent transcript pages are included in the Appendix to this Brief.

[109] The jury sought to have Dr. Younge's report in the jury room. The trial court denied its request because it was not in evidence. (Tpp. 21,941-42)

[110] In Mr. Ray's statement to the SBI, he said that the inmate was a man named Eddie Holley. Defendant's Hearing Exhibit No. 8. The Court may note that Edward Luther Holley was an inmate at Eastern Correctional Institution during the time of trial. Mr. Holley, a black male resident of Edenton, was serving a life sentence for having molested his daughter. See State v. Holley, 326 N.C. 259, 388 S.E.2d 110 (1990).

[111] The defendant was constitutionally entitled to an evidentiary hearing on all the allegations of juror misconduct. U. S. Const. Amend. VI, XIV.

[112] Mr. Ray was shown to have perjured himself on another significant matter. He denied that he was exposed to the Redbook article. (Hearing Tp. 176) Nonetheless, he had in his possession during deliberations excerpts from that very article; excerpts which he and the other jurors applied to the question of Mr. Kelly's guilt. Compare Defendant's Hearing Exhibit No. 8 with Defendant's Hearing Exhibit No. 9. He was unable to explain this as anything other than an "amazing coincidence." (Hearing Tp. 188) Mr. Ray's obvious dishonesty on this point casts doubt on his veracity about when he talked with Rozwell Streeter about Eddie Holley. He was also unable to explain why it is that he told the producers of the Frontline program that the jury used the Redbook magazine to analyze the evidence in this case. (18 January 1994 Hearing Tpp. 190-193)

[113] The only complaint by Mr. Ray at the time of trial was that he was facing retaliation by his superior for his jury service. (Tpp. 11,026-11,060) He said nothing to the court about being exposed to the opinions of others.

¹¹⁴ Defendant incorporates by reference the comparable argument made in Defendant-Appellant's Brief in State v. Dawn Wilson, 931 SC 1277.

[115] In State v. Huss, 506 N.W.2d 290 (Minn. 1993) the Supreme Court of Minnesota vacated the conviction of an alleged child molester because the alleged victim's testimony was contaminated by "disclosure stories" of the sort so prominent in this case.