After he was convicted of first-degree murder in violation
of North Carolina General Statutes § 14-17 and “sentenced to life in prison
without the possibility of parole,” Bradley Graham Cooper appealed. State
v. Cooper, 747 S.E.2d 398 (North Carolina Court of Appeals 2013). He was convicted of killing
his wife: Nancy Lynn Rentz Cooper. State v. Cooper, supra.
According to the opinion, Graham and Nancy were married in October
of 2000 and moved from Canada to Cary, North Carolina in January 2001. State v. Cooper, supra. They had two
daughters but by 2008, the marriage “was in difficulty” and by April of that
year Nancy “had hired a family law attorney and planned to move out”,
presumably with the daughters. State v.
Cooper, supra. Graham and Nancy were still living in the home in July 2008,
but “were leading mostly separate lives and sleeping in separate bedrooms.” State v. Cooper, supra.
On July 11, 2008, they “attended a party at a
neighbor's house”; witnesses later said they argued there. State
v. Cooper, supra. Graham left “around 8:00 p.m., to put the daughters to
bed” and Nancy left “a little after midnight”. State v. Cooper, supra. She disappeared some time during the
morning of July 12, 2008. State v.
Cooper, supra.
Graham later gave police this account of what happened that
morning:
[O]ne of the daughters awoke between 4:00
a.m. and 4:30 a.m., and had difficulty getting back to sleep. [She] wanted
milk, but there was none at the house. [Graham] went to a Harris–Teeter at
about 6:30 a.m. to buy milk, and returned home. [Nancy] was doing laundry, but
had run out of detergent. [Graham] returned to the Harris–Teeter to buy
detergent and, while on his way there, received a call from [Nancy] asking him
to get some `green juice.’
Receipts and surveillance video from
the Harris–Teeter confirm that [he] bought milk at 6:25 a.m., left . . . , returned
and bought detergent and juice at 6:44 a.m. After [Graham] bought the detergent
and juice, he returned home. At about 7:00 a.m., [Nancy] called to [Graham],
who was upstairs, and told him she was going running. [He] remained at home
with the daughters and, when [she] did not return from her run when expected, [Graham]
called a friend and cancelled a tennis date he had planned. [He later said] he
did laundry and cleaned around the house and, in the early afternoon, drove
around with his daughters, looking for [Nancy].
State v. Cooper, supra. (For more on the case, check out this news story.)
Police questioned Graham and investigated for the next three
days, when “a woman’s body”, later identified as Nancy, “was found on Fielding
Drive.” State v. Cooper, supra. The
next day, July 15, the body was identified as Nancy. State v. Cooper, supra. The
cause of death was strangulation
but the time of death “could not be determined with specificity.” State v. Cooper, supra. Investigators
were able to determine that Nancy died “some
time in the twelve-hour period between shortly after midnight on 12 July . . . and
approximately noon that same day.” State v. Cooper, supra.
“Around 5:20 p.m.” on July 15, Graham moved out to “preserve
the house as a possible crime scene.” State
v. Cooper, supra. He left a laptop, which “was connected to the internet
for approximately twenty-seven hours on 15 and 16 July”. State
v. Cooper, supra. After he left, police, who had a search warrant, searched
the house and Graham’s car. State v. Cooper, supra. They “also seized the laptop, along with
another computer, and various other computer-related components.” State v. Cooper, supra.
He was charged
with murdering Nancy and went to trial on February 28, 2011. State
v. Cooper, supra. The “sole direct
evidence linking” Graham “to the murder was obtained from the laptop that had
been left on and connected to the internet after” he moved out. State v.
Cooper, supra.
At trial, the prosecution presented testimony from FBI
Special Agent Greg Johnson and Durham Police Detective Chris Chappell, both of
whom testified as forensic computer analysts. State v. Cooper, supra. Both
were forensic examiners
of the Computer Analysis Response Team
(CART). CART extracts `evidence off of seized digital media’ such as computer
hard drives. The first part of the forensic process involves taking inventory
of the components. CART then checks for any portable media in or attached to
the computer, opens up the case of the CPU and removes the hard drive(s). . . .
According to Johnson's testimony, the integrity of the hard drive is protected
by making a `forensic image’ of the drive, which is `a. . . . bit-per-bit copy,
which gets every piece of . . . information off of the hard drive and puts it
into what we call forensic image.’ Examination then occurs of a different hard
drive containing the forensic image, not the original hard drive. The forensic
image requires some type of specialized software to read and `interpret those
files that it creates.’ . . .
The CART team used software called Forensic Tool
Kit, or FTK, to process that hard drive. FTK and similar programs index files
retrieved from the hard drive, allowing for specific searches for particular
data to be performed. An FTK report was then created based upon the particular
search parameters utilized. One of the sub-sets of files collected in the FTK
report for [Graham’s] laptop was temporary internet history files for dates
close in time to [Nancy’s] murder.
Johnson and Chappell testified that the
temporary internet files recovered from the laptop indicated someone conducted
a Google Map search on [it] at approximately 1:15 p.m. on 11 July, the day
before [Nancy] was murdered. They concluded this search was done by someone
using the laptop while it was at the Cisco office where [Graham] worked. [They]
testified that the Google Map search was initiated by someone who entered the
zip code associated with [Graham’s] house, and then moved the map and zoomed in
on the exact spot on Fielding Drive where [Nancy’s] body was found.
State v. Cooper, supra.
Graham called Jay Ward to testify about “the incriminating
Google Map files recovered from the laptop.” State v. Cooper, supra. Ward
had ”more than fifteen years in the computer field, specializing in computer
network security.” State v. Cooper, supra. The prosecution objected, "challenging [Ward's] credentials to testify as an expert concerning the relevant Google Map files.” State v. Cooper, supra.
In objecting to Ward’s testifying as an expert, the
prosecution focused on Ward’s
lack of training and
experience as a forensic computer analyst. The trial court agreed with the
State and, on 19 April 2011, ruled that Ward could not testify specifically
about the Google Map files. Ward was allowed to give general testimony
concerning the ease with which files could be altered or planted on a computer
that, like [Graham’s], had been left connected to the internet.
[Graham] argued,
since the trial court did not find the methods by which Ward obtained his data
to be reliable, that Ward be allowed to testify based upon the data produced by
the State's forensic analysts. The trial court denied [his] request.
Ward testified on voir dire that
had he been allowed to, he would have offered his opinion that the
incriminating Google Map files had been planted on [Graham’s] computer, and he
would have further testified to the specific aspects of the files that had led
him to this conclusion.
State v. Cooper, supra.
After the judge made that ruling, Graham “immediately” began
looking for a
forensic computer analyst he could call
to testify concerning the Google Map files. [He] located a forensic computer
analyst, Giovanni Masucci (Masucci), on 20 April 2011. As the court session
began on 21 April 2011, [Graham] gave notice of Masucci as [his] replacement
expert. Masucci had examined the data produced by the State's forensic computer
analysts, and produced a report. Masucci's report indicated that the data
results obtained by Ward matched the results obtained by CART.
Masucci's conclusion was the same as
Ward's: that the Google Map files had `been placed on the hard drive [and]
could not have been the result of normal internet activity.’ [His] curriculum vitae was sent to the State on 22 April 2011, and Masucci's report was
sent the next day. Court was not in session on these days.
State v. Cooper, supra.
When court resumed on April 25, the prosecution objected to
letting Masucci testify because his name “not on the list of experts [Graham]
provided to the State before trial, nor had the State been provided with
Masucci's report prior to trial, and these failures constituted discovery rules
violations.” State v. Cooper, supra. The
judge agreed and did not let Masucci testify.
State v. Cooper, supra. Graham was “therefore prohibited from calling
any witness to testify that the Google map files relied upon by the State to
connect [him] to the site where [Nancy’s] body was found were corrupt or had
been tampered with in any manner.” State v. Cooper, supra.
His first argument on appeal was that the judge’s ruling
that Ward was not qualified to give expert testimony about tampering on his
computer “`was an abuse of discretion and deprived [him] . . . of his state and federal constitutional due process right to present a defense.” State
v. Cooper, supra. The Court of
Appeals agreed. State v. Cooper, supra.
It noted, first, that the Supreme Court has said “[a]ccuracy
in criminal proceedings is a particularly compelling public policy concern” and
has said that “a defendant on trial has a greater interest in presenting expert
testimony in his favor than the State has in preventing such testimony.” State v. Cooper, supra (citing Ake v. Oklahoma, 470 U.S. 68 (1985)). It then explained that the “admissibility of
expert testimony is controlled by Rule 702 of the North Carolina Rules of Evidence”. State v.
Cooper, supra.
Rule 702 says that if “scientific, technical or other
specialized knowledge will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training, or education, may testify thereto in the form of an
opinion, or otherwise” if the testimony satisfies three factors. State v. Cooper, supra. The factors are that (i) the testimony is “based upon
sufficient facts or data”; (ii) it “is
the product of reliable principles and methods” and (iii) the witness applied "the principles and methods reliably to the facts of the case."
In testifying on voir dire, Ward described his experience
with computers and networks, which began in 1997 and continued until the
trial. State v. Cooper, supra. He said he used “software programs, such as
EnCase and FTK” but there were limitations in using the software alone.” State v. Cooper, supra. Ward’s testimony is too long to summarize
here. State v. Cooper, supra.
The Court of Appeals noted that, at trial, the prosecution “did
not seriously challenge Ward's ability to understand and interpret the actual
data retrieved” and that his voir dire testimony indicated he “had
been examining precisely the kind of files at issue -- temporary internet files
-- on a regular basis throughout his long career as a digital data security
professional.” State v. Cooper, supra.
It also noted that “[a]ccording to his voir dire testimony, Ward was engaged in a specific
profession in the type of analysis in which the defense wanted him to testify,
and was experienced with the identical subject matter --
temporary internet files -- at issue.” State
v. Cooper, supra (emphasis in the original). The court therefore found Ward
was “certainly `in a better position to have an opinion on the subject than
[wa]s the trier of fact.’” State v.
Cooper, supra (quoting State v.
Morgan, 604 S.E.2d 886 (North Carolina Supreme Court 2004)).
The Court of Appeals noted that the trial judge believed
that, because the
digital data was recovered using
forensic tools and methods, only an expert forensic computer analyst was
qualified to interpret and form opinions based on the data recovered. The
evidence on voir dire does not support this understanding of
the nature of Ward's expertise. Assuming arguendo that the
data Ward recovered from the forensic copy of the hard drive was suspect,
neither the State nor [Graham] argued that the data recovered by the State's
experts was flawed -- just that there was disagreement concerning the
interpretation of that data.
Nothing in evidence supports a finding
that Ward was not qualified to testify using the data recovered by the State.
Ward, based upon expertise `acquired through practical experience,’ was
certainly `better qualified than the jury to form an opinion as to the subject
matter to which his testimony applie[d].’ Miller v. Forsyth Memorial Hospital, 618 S.E.2d 838 (North Carolina
Court of Appeals 2005)).
State v. Cooper, supra.
The court also noted that the
Google Map files recovered from [Graham’s] laptop were
perhaps the most important pieces of evidence admitted in this trial. We hold
that the trial court abused its discretion in excluding Ward from testifying,
relying on the State's own evidence, to his opinion that the Google Map files
recovered from [Graham’s] laptop had been tampered with.
State v. Cooper, supra.
The court also addressed the trial judge’s barring Masucci
from testifying. State v. Cooper, supra. It assumed, arguendo, that Graham “technically violated North Carolina Statutes§ 15A-905”, which requires defendants to give the prosecution notice of any
experts they intend to call as witnesses as trial. State
v. Cooper, supra. The Court of
Appeals also found, however, that the trial judge’s excluding Masucci’s
testimony was “disproportionate to the purposes this state's discovery rules
were intended to serve.” State v. Cooper, supra.
The court noted that the Supreme Court has held that if a trial
judge determines that a defendant “willfully” did not comply with the
obligation to identify expert witnesses in advance in order to “obtain a
tactical advantage that would minimize the effectiveness of cross-examination
and the ability to adduce rebuttal evidence,” it would be constitutionally
permissible for the judge to bar the defendant from offering that witness’
testimony at trial. State v. Cooper, supra
(citing Taylor v. Illinois, 484 U.S.
400 (1988)).
It then noted that here, Graham, in
failing to provide earlier notice to
the State, was clearly not seeking any tactical advantage. The trial court made
no finding of willful misconduct, and the record divulges none. [He] only
sought out another expert, Masucci, after the State was successful in moving to
limit Ward's testimony in the middle of the trial. At that point, [Graham] had
no way to present vital expert testimony and comply with North Carolina
Statutes § 15A–905(c)(2).
State v. Cooper, supra.
The court therefore held that “excluding Masucci's testimony
as a sanction for a discovery rules violation violated [Graham’s] rights under
the constitutions of the United States and North Carolina.” State v. Cooper, supra. It also found “the
error was of such magnitude, in light of the earlier exclusion of Ward's
relevant testimony, that it requires . . . a new trial.” State v. Cooper, supra.
For all these reasons, the court granted Graham a new
trial. State v. Cooper, supra. For
more on that, check out the news story you can find here.
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