Trial Transcript - State of North Carolina v. Mark Bradley Carver

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE

SUPERIOR COURT DIVISION
COUNTY OF GASTON 08 CRS 68290

STATE OF NORTH CAROLINA, )
) TRANSCRIPT OF TRIAL
VS )
) MARCH 14, 2011
MARK BRADLEY CARVER, )
) PAGES 1 - 24
Defendant. )
) VOLUME I OF V

These proceedings coming on to be heard before the
Honorable Timothy S. Kincaid, Judge Presiding, commencing on the
14th day of March, 2011, in Gaston County Superior Court, the
following proceedings were had, to wit:

Present and appearing for the State was William
Stetzer and Stephanie Hamlin, Assistant District Attorneys,
Gastonia, North Carolina.

Present and appearing for the Defendant were Brent
Ratchford and David Phillips, Attorneys at Law, Gastonia, North
Carolina.

MITZY BONDURANT
OFFICIAL COURT REPORTER
325 NORTH MARIETTA STREET, SUITE 4135
GASTONIA, NC 28052
(704) 852-3173

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March 14, 2011

(The following proceedings were held in open court with
the defendant and all counsel present.)

MR. STETZER: This is the State of North Carolina versus
Mark Bradley Carver, 08 CRS 68290, first degree murder, 08 CRS
68293, felony conspiracy to commit first degree murder. The
State is ready to proceed, Your Honor. We do have some pre-trial
motions from both sides. We will take those in whatever order
the Court pleases.

THE COURT: All right. Good morning.

MR. RATCHFORD: Good morning, Your Honor. Mr. Ratchford,
Mr. Phillips for the defense are ready to proceed.

THE COURT: All right. What motions do we have?

MR. STETZER: Would you like for me to just read from
the pile and pull them as we go?

THE COURT: That would be fine.

MR. STETZER: We will start with a motion for
sequestration and segregation of State’s witnesses as a defense
motion.

THE COURT: Is the State opposed?

MR. STETZER: We would like to keep our lead
investigator in here, Detective Terry.

THE COURT: Any objection to that?

MR. RATCHFORD: No, sir.

THE COURT: All right. The motion is granted then

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except for your lead investigator.

MR. STETZER: Thank you, Your Honor. We have a motion
for - this is also defense. Additional discovery request. We
addressed this in chambers, I believe. This is for technical
information from a Grayson Emick from Richland County. I will
let the Court know that we have provided everything that we have
received from him at Mr. Ratchford’s request. We passed that
request on and gave him everything we have got.

MR. RATCHFORD: We are satisfied, Your Honor.

MR. STETZER: Obviously based on the caption I called,
the State would move to join these offenses for trial today. We
filed a written motion to that effect. It is in the court’s
file.

THE COURT: Is the defendant opposed?

MR. RATCHFORD: No, sir.

THE COURT: Very well.

MR. STETZER: The State’s motion for discovery to the
defense, we haven’t received anything lately. We haven’t
received a witness list. I assume you have a witness list,
right? The record should reflect I have now received a witness
list from the defense. There is a motion for discovery. We
haven’t received anything. I am assuming there is nothing for us
to be receiving.

MR. RATCHFORD: That’s true, Your Honor.

THE COURT: All right.

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MR. STETZER: The State has a motion in limine

concerning defendant’s proof of guilt of another person. This
has been filed in the court. There is also an argument citing
case law for that, if the Court would like to take a moment to
look at that.

THE COURT: The Court can’t rule on this motion until it
hears the way evidence is going to be proffered.

MR. STETZER: The State exactly agrees with that, Your
Honor, but automatically at this stage is before this comes up in
jury selection or openings that we would have a chance to discuss
a matter such as this at the bench.

THE COURT: All right.

MR. STETZER: I am just asking for a pre-trial ruling
now as to that extent only.

THE COURT: What says the defendant?

MR. RATCHFORD: Your Honor, my reading of the motion,
basically it is trying to ferret out the defense’s theory or
whatnot, trying to limit who, if anyone, the defense can turn the
Court’s or the jury’s attention to when - before our pre-trial
conference last week and our discussions as far as Mr. Phillips’
representation and bringing him on, we addressed that in chambers
as far as any evidence to be presented towards Mr. Cassada. I am
assuming that that is basically where the State was headed with
this. We adamantly oppose this as far as trying to limit the
defense’s ability to defend the case. It should come up or be at

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best as it comes up but as far as requiring the defense to
proffer witnesses and the State allow voir dire, we strongly
oppose that and don’t think that is required at all.

THE COURT: I don’t disagree with the contents of the
motion. It has to be more than speculation or conjecture.

MR. RATCHFORD: I agree, Your Honor. That’s what well
established case law says, but I guess we would turn your
attention also to State vs. McElreth which is 322 N.C. 1 which
basically addresses the issue of its relevance. Relevance is the
key. The Court will make that determination. Factually stated
in the case any evidence calculated to throw light upon the crime
charged should be admitted, you know, pursuant to the rules, but
I think that’s the kind of rule that should go

THE COURT: All right. We will review that if the
matter does arise and again this is only competent evidence
related to a specific person or persons. What else we got?

MR. HAMLIN: Your Honor, the State also filed a motion,
January 24, 2011 about a motion in limine concerning polygraph
evidence. The previous co-defendant in this case took a
polygraph test and this particular individual, Mr. Carver,
offered to take a polygraph test. From researching it shows that
even the fact that a person offered to take a polygraph test
cannot be mentioned in trial. I do have some case law on that
for Your Honor and the defense if you would like to see it.

THE COURT: What says the defendant?

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MR. RATCHFORD: Your Honor, I disagree and if I

understand the case law in State vs. Grier, it is not the mere
mention. If the State opens the door, then the defense is
allowed to ask or inquire about it. State versus Ward, which is
a case that came down earlier this year, cites State versus
Canada where one party introduces evidence as to a particular
fact. The other party is entitled to introduce evidence in
explanation or rebuttal thereof even though such latter evidence
would be incompetent or irrelevant if it had been offered
initially. So the defense could not offer up the fact that Mr.
Carver offered to take one or that Mr. Cassada took one and that
he passed it, but if there is going to be evidence we contend in
a video, a video statement by the defendant, that alludes to that
fact or is at least mentioned, and if the State plays the video
they open the door and we should be allowed to ask questions
concerning it.

MR. STETZER: I am not arguing that.

MS. HAMLIN: No, we are not arguing that at all. If we
bring it up, then of course we would expect there to be some
issues. However, if that video is played we would ask that that
portion of the video be redacted. We would assume the defense
would want the same thing.

MR. RATCHFORD: Absolutely not, Your Honor. If they
open the door they play the whole video. I think the evidence is
exculpatory more than inculpatory.

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MS. HAMLIN: May I approach with case law, Your Honor?

THE COURT: Yes.

MS. HAMLIN: Your Honor, the case law that I have that I
am presenting is directly on point indicating that the admission
of someone by either defense or state of asking that they be able
to take a polygraph cannot be mentioned throughout the trial in
any way or even during arguments.

THE COURT: It is not admissible. It is not
permissible. If there is a video tape that mentions it, if that
part comes in, it is certainly subject to cross. If it is not
permitted we will have to determine whether or not redacting it
takes away from the statement or its cohesiveness before we can
determine whether or not the jury should be entitled to see the
whole thing. If it appears to be of such nature that it would be
incoherent or inconsistent, then the State may have to make a
choice of whether or not they want to play it or whether we want
to open the door.

MS. HAMLIN: Thank you, Your Honor. Your Honor, there
is one last motion that was filed by the State back in January of
2011. This one specifically deals with the State Bureau of
Investigation, North Carolina, precluding the defense from
mentioning or listing any information regarding the recent
investigation into the independent reviews of the North Carolina
State Bureau of Investigation. I spoke to Mr. Welte (ph) with
the Institute of Government. Myself and some other people have

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tried to find actual case law on this. I think it’s just such a
new issue there hasn’t been anything actually published at this
point. So we would be asking that the defense not be allowed to
elicit, mention, whether jury selection, openings, anything in
regard to that investigation. In this particular case we do plan
on calling some members of the State Bureau of Investigation.
However, one of them was not even employed back in 2003 when the
independent review took place. I believe it was 87 in 2003. The
other one started in 2003. Neither one of them was part of this
investigation at all nor was their department. Both these people
are in DNA. The investigation was into serology and at this
point we would ask that Your Honor preclude any mention of that.

THE COURT: What says the defense?

MR. RATCHFORD: Your Honor, that goes directly to the
credibility of each witness. I think we are allowed to ask. If
it doesn’t pertain to them, it doesn’t pertain to them, but to
basically limit the defense saying you can’t even mention the
fact that the entire lab - the entire lab - is under
investigation is impermissible. If certain people were not
employed at that time, then it is not a problem with those
people, but as to the people who were employed at that time in
that agency, if they are subject to investigation, we don’t know
unless we ask. If they are not subject to investigation or they
hadn’t been questioned or anything, you know, just a couple of
questions and we’re done. If they are, then I think it goes to

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their credibility and their reliability.

MS. HAMLIN: May I be heard, Your Honor?

THE COURT: Yes.

MS. HAMLIN: Your Honor, the State would understand that
if these tests were actually done back during the time period
that they had this investigation but they didn’t, and also if you
are permitting them to ask these witnesses about the
investigation, if they are familiar with it, if they are
involved, we would ask that that be done outside the presence of
the jury.

THE COURT: Well, first of all, any testimony about any
such investigation unless one were directly involved would be
hearsay. Therefore, inadmissible. That pretty well solves the
problem.

MS. HAMLIN: Thank you, Your Honor.

THE COURT: But if the question is asked were you
involved in any type of investigation, I think that’s
permissible, but as to a general question about do you know about
the investigation that happened at the SBI lab, I think that is
impermissible because that is a statement that is not in
evidence. There is no evidence of any investigation unless you
have somebody to call to testify that there was an investigation
and they were involved. So I don’t see that as an issue unless
the door gets opened by somebody or the witness was actually
involved in it but I think it is permissible to ask the witness

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if they were involved in any type of investigation concerning the
lab report or its credibility, et cetera. I think it’s an open
door on that.

MR. STETZER: We have no further motions.

THE COURT: Anything from the defense?

MR. RATCHFORD: Your Honor, I have basically a
housekeeping motion and I have tried to let the prosecution know
on Friday. I had a very good friend of mine pass this weekend.
I have been giving it some thought. The funeral is tomorrow.

THE COURT: What time?

MR. RATCHFORD: Visitation starts at one and the service
is at two. I was going to suggest to Your Honor if we could
maybe go till one tomorrow and then pick up at three-thirty maybe
we could - I could attend that service.

THE COURT: That only leaves us with about an hour or
hour and fifteen minutes. We just may take tomorrow afternoon
off and let you go to your funeral.

MR. RATCHFORD: I would appreciate it, Your Honor.

THE COURT: Any other motions?

MR. RATCHFORD: Not from the defense, Your Honor.

THE COURT: Any affirmative defenses?

MR. RATCHFORD: No, sir.

THE COURT: Does the State intend to make an opening?

MS. HAMLIN: Yes, Your Honor.

THE COURT: What about the defendant?

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MR. RATCHFORD: Yes, sir.

THE COURT: There are some matters we need to put on the
record that we discussed the other day just to be sure everybody
is on the same page. There was a ruling on the record that Mr.
Phillips could become an attorney of record on behalf of the
defendant so I won’t need to have to go into that portion again.
There was also a request that was conveyed to the sheriff to give
the defense some sort of room that they could secure things in in
this building rather than having to go back to their office.

MR. RATCHFORD: That has been complied with, Your Honor.

THE COURT: Good. The State has an office here. There
is no reason you shouldn’t during the course of the trial.
Counsel also indicated that there was not any discovery
outstanding at that time. That has been affirmed also here. The
Court also indicated that one attorney would be doing jury
selection. Who is going to do that on behalf of the State?

MR. STETZER: I will, Your Honor.

THE COURT: All right, and one attorney for the
defendant.

MR. RATCHFORD: I will, Your Honor.

THE COURT: And then only one attorney is going to make
an opening for each side but I indicated I would allow all four
counsel to make closings and we will take up the order of that at
the close of the trial depending on compliance with certain rules
regarding the presentation of evidence. I believe that’s all the

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things that were discussed. Is that the State’s recollection?
MR. STETZER: That’s the State’s recollection, Your
Honor.
THE COURT: Mr. Phillips? Mr. Ratchford? Is that your

recollection?
MR. RATCHFORD: Yes, sir.
MR. PHILLIPS: Judge, that’s our recollection. For the

defense and for the record I will be doing the opening statement.
THE COURT: All right. What about for the State?
MS. HAMLIN: I will, Your Honor.
THE COURT: All right. What time do the jurors arrive?
MS. HAMLIN: 11:30.
THE COURT: 11:30. So that gives us about an hour.

Anything else?

MS. HAMLIN: Well, they are actually just supposed to be
ready to come in here at 11:30 so they may be ready earlier. I
can check in the back. (Handing out witness list)

THE COURT: Did you provide the court reporter a copy?
MS. HAMLIN: I did, Your Honor.
THE COURT: Has the defense?
MR. RATCHFORD: I have not, Your Honor. I will be glad

to.

THE COURT: She can have mine. She will need it
probably more than I will. While she is checking the jurors, any
stipulations?

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MR. STETZER: No, sir.

MR. RATCHFORD: No, sir.

THE COURT: I’ll tell you what. Let’s just simply do
this. We will just recess until 11:30. We will begin with jury
selection at that time. That way there is not any question about
it.

(Pause)

THE COURT: We will recess until 11:00, Sheriff.

(Whereupon the Court took a brief recess and thereafter
resumed with the defendant and all counsel present.)

THE COURT: Anything prior to summoning the jury?
` MR. STETZER: Not from the State, Your Honor.

MR. RATCHFORD: Not for the defense.

THE COURT: An estimate on trial time just because they
are going to want to know.

MR. STETZER: One to two weeks is what we’ve talked
about in chambers the other day.

MR. RATCHFORD: Less than two weeks, Your Honor.

THE COURT: All right. Sheriff, would you retrieve the
jury?

(Whereupon, the prospective jurors entered the
courtroom.)

THE COURT: Show that the members of the jury array are
seated in the courtroom. Good morning.

JURORS: Good morning.

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THE COURT: You don’t act really thrilled to be here,
but I want to assure you, first of all, we are certainly glad
that you are here. What you are about to do is fulfill one of
the most important civic duties that you could possibly fulfill
and that is serve as a juror on a trial. What you are about to
do is not for your entertainment. It is not going to be like
television. It is not going to be like novels you have read or
movies that you might have seen. This is, in fact, a search for
the truth that will have consequences other than commercials.
What you will do will directly affect the lives and perhaps the
liberty of those who are involved so it is very important and
sometimes the search for truth is a very painstaking and
deliberate and slow process but it is a necessary process. So do
not expect to be entertained but do expect that you will have to
pay close attention to what’s going on in this courtroom, or, if
you are not selected in this particular case, the other courtroom
will be selecting a jury perhaps later on this morning or this
afternoon.

My name is Judge Timothy Kincaid. I am the senior
resident superior court judge from Catawba County and I have been
assigned to preside here by the chief justice of the North
Carolina Supreme Court. You are in the major league of trial
courts in North Carolina and again the cases that are heard here
are very important. They are very serious and they directly
affect those that are involved. In just a few seconds the clerk

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is going to call the names of twelve of you to be seated in the
jury box. If your name is called, please come forward. The
sheriff is going to direct you to which seat you are to take.
The seats are numbered. Please do not switch seats for we will
make a seating chart so if necessary we may call upon you by name
during jury selection or during the course of the trial if
necessary. Madam Clerk, would you seat a jury, please?

(Whereupon, twelve jurors were placed in the jury box.)

THE COURT: To all the prospective jurors, now just
because you are not seated in the jury box now doesn’t mean that
you won’t be before the day is over so you will need to listen
carefully to all the instructions that are given to this panel as
well as any others that might be seated. First of all, this is a
requirement of your citizenship. We know this is inconvenient.
Most of the court personnel have either served on a jury or have
acquaintances or family members that have served on a jury and so
we already know this is inconvenient, but the fact that it is
inconvenient or it may interfere with your income earning ability
or appointments or child care or, in today’s economy, adult care,
is not grounds to be excused from the jury. Every qualified
person is required to serve. Literally men and woman are dying
this very day serving in the armed forces so that we can have a
system of government and a judicial system that we have. People
are fighting for this very system so it is very important and it
is not much to give up a little bit of our time to make this most

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important service. You guarantee that the law is applied fairly
and uniformly throughout the states and in each county.

The case that has been called for trial is entitled
State of North Carolina versus Mark Bradley Carver. The
defendant in this case is Mr. Mark Bradley Carver and he is
seated at the counsel table to the Court’s left between his
attorneys, Mr. Ratchford who is closest to you, and Mr. Phillips
who is seated on the other side of Mr. Carver. Seated at the
other table are the assistant district attorneys. That is Ms.
Hamlin who is seated closest to you and Mr. Stetzer seated beside
her. They are the lawyers for the State of North Carolina and
upon them rests the burden of proof in this case.

Mr. Carver has been charged with the first degree
murder of Irina Yarmolenko allegedly occurring on or about May 5th
of 2008 and is also charged with conspiracy to commit first
degree murder of Irina Yarmolenko and that conspiracy is alleged
to have occurred on or about May 5th of 2008 with one Neal
Cassada. Mr. Carver has entered pleas of not guilty. After the
jury is selected and impaneled you will hear evidence that will
be presented according to certain rules of law which the Court
enforces and the Court determines what evidence may be admitted
and after you have listened to the arguments of counsel and the
evidence the Court is going to instruct you on all the law that
you will need to know, follow and apply to the evidence in this
case. It is absolutely necessary that you understand and apply

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the law as the Court gives it to you, not as you think it is or
you might like it to be. Again the reason this is so important
is so that justice will be applied uniformly throughout all the
counties throughout North Carolina and every person charged with
the same offense is treated in the same way and has the same law
applied to him or her. You are not expected to know the law.
You are not going to be questioned about the law except perhaps
whether you will accept and follow certain principles of law.
Generally speaking the law in a criminal case is as follows.

To the charges the defendant has entered pleas of not
guilty. Under our system of justice when a defendant pleads not
guilty the defendant is not required to prove his innocence. He
is presumed to be innocent and that presumption of innocence
remains with the defendant throughout the entire trial until such
time as the jury that is selected and impaneled is convinced from
the law and the facts beyond a reasonable doubt as to the
defendant’s guilt. The burden of proof is on the State of North
Carolina that is represented by the assistant district attorneys
to prove to you that the defendant is guilty beyond a reasonable
doubt.

Now a reasonable doubt is not a vain or fanciful or
possible doubt but rather a reasonable doubt is a fair doubt
based on reason and common sense that arises out of some or all
of the evidence presented or the lack or insufficiency of the
evidence as the case may be. Proof beyond a reasonable doubt is

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proof that fully satisfies or entirely convinces you of the
defendant’s guilt. There is not any burden or any duty of any
kind on Mr. Carver. The fact that he has been charged is not
evidence or any type of proof of guilt. That is merely the
mechanical or the administrative way one is brought before the
Court. If the State proves the defendant’s guilt beyond a
reasonable doubt, then of course the function of the jury by its
verdict is to say or find the defendant guilty. If the State
either fails to prove guilt or if you have a reasonable doubt,
then of course the function of the jury by its verdict is to say
or find the defendant not guilty.

You have several duties by virtue of your already
summoned and sworn as jurors. Your most important duty is to
remain fair and impartial. You are to listen carefully to the
evidence, to the arguments of counsel and the instructions of law
from the Court, and then it will be your duty to determine from
the evidence that is presented what the facts are, what the truth
is. Once you make that determination you then apply the law that
the Court gives you to those facts in reaching a verdict.

In arriving at the facts of a case you may believe all,
any part or none of what a witness says on the witness stand and
in determining whether or not to believe a witness you simply use
the same tests of truthfulness that you will use every day in
your own affairs to decide if someone is credible or not. It
might not only be what the witness says but how they act,

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mannerisms, demeanor, et cetera on the witness stand. You may
use whatever you would use in your everyday affairs to decide if
someone is credible or believable. You alone also determine the
importance of any evidence that you find to be believable and we
call that the weight of the evidence. It is your duty to remain
fair and impartial throughout the trial, the entire trial, and in
order to ensure that you remain fair and impartial we have
certain rules that you must comply with throughout the entire
session. This applies to each of you whether you are seated on
this particular case or any other case that you might be called
upon to serve as a juror.

First of all, you may not talk about the case among
yourselves or with anyone else. This includes family members or
acquaintances during any recess. You are not to form or express
any opinion about the guilt or innocence of the defendant,
whether you believe or disbelieve a witness, or whether any fact
has or hasn’t been proven or what your findings ought to be. You
are not to talk about the case or form those opinions until the
court directs you to begin your deliberations. You may not have
any contact or communication with any participant. A participant
not only includes the attorneys, the defendant, or any witnesses
that might be called by either side. It also includes anybody
who might be remotely interested in the trial. You may not have
any communication with them about anything, even matters
unconnected with the trial. You are not to get on an elevator

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with them, go near them in a snack bar or any of the common areas
of the courthouse. You are not to even go close enough to them
where you might be able to overhear them or someone else might
infer that you are having contact with them. Further, the
parties, the attorneys and the witnesses are hereby put on notice
and ordered by this court not to have any contact with you, not
to come near you, not to speak to you at all about anything. You
can’t ask them where the bathroom is. You can’t ask them what
time we start back, anything at all, and if there are witnesses
that are not here the attorneys have a responsibility to inform
their witnesses not to have any contact with you or know who you
are or where you are or what you’re doing.

You are not to read, watch or listen to any media
accounts of this trial and there will be, and the reason for
doing this is the media may include matters that are not proper
for your consideration under our rules of evidence and law or it
may contain reports that are inaccurate. You must base whatever
verdict you return solely on the evidence that is presented here
in the courtroom free from any outside influence. You may not
make any independent investigation or inquiry about any matter
connected to the trial. You can’t go on Facebook and Twitter and
do your research. You can’t call any friends or acquaintances
that you think might have insight into this trial. Everything
you are going to need to know to decide this case is going to be
presented right here in open court. If anyone attempts to

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contact you about this case or actually any other case that you
may be summoned for during this session of court or during Judge
Foust’s session of court down the hall, you are to let your
courtroom sheriff know immediately or your jury trial coordinator
know immediately. That is a criminal offense. It is a
contemptible offense and it will be dealt with in rather short
order.

There will be some other instructions that I will talk
to you about in just a little bit. Right now we are going to
begin the jury selection process. The attorneys as well as the
Court may ask you some questions. The sole purpose of these
questions is to determine your - let’s call it fitness for this
particular case. The questions should be discreet and asked
collectively whenever possible and that means you may simply
answer by raising a hand if you don’t understand the question.
Indicate that so we can clarify the question. If you don’t hear
the question let us know. Please be honest and accurate with
your answers. We don’t want to delay this matter any more than
is necessary but again we are dealing with the very life and
liberty of certain individuals and we need to make sure that we
use whatever time we need to ensure we have a fair trial. The
attorneys have the opportunity and right to excuse a limited
number of jurors for any reason or for no reason whatever. If
you are excused don’t take it personal and don’t be embarrassed
and don’t think it is some sort of inference that you are not a

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fair person. The very attorney that might excuse you on this
case may very well keep you on another case that that same
attorney was trying. They have a responsibility, professionally
speaking, to their client to select a jury that they think is
right for this particular case. If there is a question asked
that you find to be so embarrassing or so personal you are
uncomfortable answering it, let us know that. We don’t want to
embarrass anybody. We don’t want to put anybody on the spot. I
won’t promise that you won’t have to answer it, but that’s not
the purpose. I really don’t think that is going to happen but
just in case it does you have our apologies in advance.

Now you are not to impart that one side has an
advantage over the other side by virtue of the procedure that the
Court uses to conduct a trial. Somebody has got to go first.
Somebody has got to be last. So just because one party gets to
go first or gets to go last or has to go first or has to go last
doesn’t mean anything. It is just the most efficient way to
conduct a trial. Only those of you seated in the jury box will
be answering questions. However, if you are seated in the
gallery listen carefully in order to move things along. You may
be asked a question if you are seated such as was there anything
asked of the other jurors that you felt was applicable to you and
you felt you should respond to or let the attorneys know. If you
don’t listen to what they are asking you’ll be guessing. We do
not want you to guess. We want you to be fair with us. Again we

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value your time. We know this is inconvenient.

(Whereupon, jury selection commenced.)

THE COURT: When we take any type of recess whether it
is for lunch or for a break in the afternoon or morning or at the
end of the day remember those instructions you have already been
given. You can’t talk about the case with anyone. This includes
among yourselves. You can’t have any contact or communication
with any of the participants or interested parties. You are not
to do any research or any investigation on your own or visit the
scene for the purpose of making an investigation. You are not to
read, watch or listen to any media accounts of the trial. The
sheriff will escort you in and out of the courtroom and everybody
else stays seated until all the jurors are in or out of the
courtroom. He will tell you where he wants you to return to and
at what time so that we can resume at 2:00. Our normal lunch is
from 12:30 till 2:00. Thank you for your attention. Sheriff,
you may escort the jury.

(Whereupon, the jury left the courtroom and the Court
took a lunch recess from 12:30 until 2:00 P.M. and thereafter
reconvened with the defendant and all counsel present and jury
selection continued.)

THE COURT: This court normally breaks about ten minutes
ago so we will go ahead and take our evening recess. You will
need to be back in the morning. The sheriff will tell you where
you need to report back to. He will also tell you what time he

-24

will need you here so that we can resume at 9:30. Again you are
ordered and not to discuss the case with anyone. You are not to
have any contact or communication of any nature or for any
purpose with any party, witness, attorney or anyone otherwise
interested in the case. You are not to read, watch or listen to
any media accounts, visit the scene or make any type of
independent investigation or inquiry. Of course if anybody does
attempt to contact you, please let your sheriff know first thing
in the morning. We do thank you for your time. Sheriff, you may
escort the jury from the courtroom.

(Whereupon, the Court took an evening recess at 5:00
P.M.)

-25

-26

-27

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF GASTON 08 CRS 68290

STATE OF NORTH CAROLINA, )
)
VS )
)
MARK BRADLEY CARVER, )
)
Defendant. )
)

TRANSCRIPT OF TRIAL

MARCH 15, 2011

PAGES 25 - 90

VOLUME II OF V

MITZY BONDURANT
OFFICIAL COURT REPORTER
325 NORTH MARIETTA STREET, SUITE 4135
GASTONIA, NC 28052
(704) 852-3173

-26

I N D E X

STATE’S
WITNESSES DIRECT CROSS REDIRECT RECROSS

Dennis Lovelace 34 43 46 47
Brenda Pierce 47 54
Jane Fisher 58 63
Debbie McClain 64
Jason Breidenstein 68 71
Diana Carlton 72 77 81
Randy Kiser 83 88

E X H I B I T S

State’s
Exhibit # Marked Received

1 -Lovelace statement 42 42
2 -CD of 911 call 53 54
3-6 Photos 61 62
7 -CD surveillance video 66 67
8 -Photo of victim 76 76
9 -Large map 84 84
10-11 -Photos 87 87

-27

March 15, 2011

(The following proceedings took place in open court
with the defendant and all counsel present.)

THE COURT: Anything prior to summoning the jury array?

MR. STETZER: No, sir.

MR. RATCHFORD: No, sir.

(Whereupon, the jurors returned to the courtroom and
jury selection continued and thereafter a jury of twelve and two
alternates was impaneled at 10:15 A.M.)

THE COURT: Members of the jury, you have been selected
and impaneled to serve as jurors in the case entitled State
versus Mark Bradley Carver. The trial will proceed in
substantially the following manner. First the attorneys will
have the opportunity to make their opening statements. What they
say, however, whether it was during jury selection or during the
opening statement or at the close of the trial or during the
trial is not to be considered or construed by you as evidence.
The evidence generally speaking will come in the form of
testimony from the witness stand. Witnesses will be placed under
oath for you and questioned by the attorneys. It also may be
that evidence comes in the form of certain documents or other
exhibits that you may be shown. If you are, in fact, handed an
exhibit please examine these carefully, individually and without
comment. It is the right of an attorney to voice an objection to
a question that the attorney believes is improper or even

-28

questions if proper if the answer might be inadmissible. If the
Court sustains an objection to a question and does not permit it
to be answered, you are not to speculate on what the answer might
have been because the question itself asked by the attorneys is
not evidence and you are not to draw any inference from the
contents of the question. Should a witness answer the question
prior to the Court’s ruling and the Court does sustain an
objection, you are not to consider the answer given as evidence
in this case. You are to strike it from your mind and memory. A
motion to strike may be made and anything that you are directed
to strike means that you cannot consider it as evidence during
the course of your deliberations. You are to consider all the
other evidence as if you had never heard of that particular
answer. The Court may overrule an objection. If that occurs,
you are not to place any greater importance, that is, weight, on
that evidence simply because someone objected. From time to time
during the course of the trial it will become necessary for the
Court to confer with the attorneys about issues of law or
procedure. These are required by law to be heard outside of your
presence. It is not that we are trying to hide anything from
you. They are just required to be heard outside your presence
because they do not directly affect what your ultimate duty is.
So you may be escorted to the jury room or the Court may conduct
a bench conference. In any event, don’t speculate on what’s
going on regarding matters that you are excluded from.

-29

Everything you are going to need to know to decide this case is
going to be presented in open court.

At the close of the evidence the Court will have a
conference with the attorneys about what the applicable law is
that you are to be instructed about and then they will have the
opportunity to make their final summations or closing remarks.
Again, what they say is not evidence.

Once they have completed the closing arguments the
Court will instruct you on the law that you are to follow and
apply to the evidence in this case. Again during the course of
the trial there are those rules that you must comply with. You
may not talk about the case with anyone. You may not form or
express any opinions about the guilt or innocence of the
defendant, whether you believe or disbelieve a witness or as to
what your findings ought to be. You may not read, watch or
listen to any media accounts of this trial. You are not to visit
the scene or make any type of independent investigation on your
own. If anyone does attempt to contact you, please let your
courtroom sheriff know immediately. That is a criminal offense.
It is a contemptible offense because the parties, witnesses,
attorneys and other interested parties present have been
instructed and are instructed by the Court not to have any
contact with you, come near you, get on an elevator with you, or
be even close enough where you might overhear them talking about
something. If you fail to comply with these rules, you may be

-30

held in contempt which means you may be punished by imprisonment,
fine or both or you may cause you and your fellow jurors to
become sequestered. You do not want that to happen. You do not
want to be the cause of that happening to your fellow jurors, I
assume you, because you would not be permitted any contact with
any person even in non-court hours until the trial is over. Your
cell phones will be secured. We would let people know that you
just wouldn’t be coming home. You would be put up in a hotel
somewhere and your meals catered to you. You don’t want that to
happen, I promise you.

Our schedule generally speaking is as follows. We
begin at 9:30 in the morning. We usually take a recess around

11:00. We normally break for lunch between 12:30 and 2:00 and
then we take an afternoon recess around 3:15 or 3:30. Now the
breaks that you actually get may end up being longer than those
that the Court takes simply because we will try to schedule any
of these matters that are about procedure or law that have to be
heard around the break time so your receiving evidence won’t be
constantly interrupted. I will do everything I can to get you
out of here at or before 5:00. I will do everything I possibly
can. Those times, however, are not written in stone. We are, in
fact, dealing with human schedules and therefore things change.
They are flexible but that is generally our schedule. Now today
our schedule will be just a bit different. We will recess for
the day today at 1:00 because of a funeral and then we will
30

-31

resume at 9:30 in the morning. There is not any sense in
bringing you back later on this afternoon for maybe an hour or
so. So your schedule is a bit different today.

Do any of you want to take notes during this trial? I
just need to know. Okay. I think first of all we will need to
know whether or not you want us to provide you with paper and
pencil or you are free to use your own. If you want us to provide
you with paper and pencil, we will do that. Would you raise your
hand if you need that? (Some jurors raise hands) Sheriff, would
you take care of that?

Now the thing about taking notes in court, it’s a
little different from taking notes like taking notes in a
classroom or at a meeting. There are some things you need to be
aware of about note taking. First of all, your notes are not
evidence. Second of all, one person’s notes is no more important
than the memory of a person who is or isn’t taking notes. Some
people are gifted with a memory that is just much better than any
notes that I could ever take. Third, since your notes are your
personal thoughts about what you perhaps think is important or
even perhaps what you need reminding of, nevertheless, since they
are your personal thoughts you can’t share them with your other
jurors until it is time to begin your deliberations. Just like
you can’t talk about the case, you can’t share your notes during
the course of the trial.

Fourth, if you are looking down taking notes you might

-32

miss something that a witness does. You alone are the sole
judges of the credibility of the evidence and the weight to be
given the evidence. In deciding those matters, you are free not
only to use the testimony, but how a witness acts, body language,
mannerisms, whether they are evasive in answering questions, tone
of voice, all of those things that you would use every day in
your own affairs to decide if someone is believable. If you are
looking down taking notes, you might miss something that a
witness does. So be keenly aware to be sure you are observing
the witnesses. Given that, if you can’t hear something that is
going on that you are supposed to hear, for example testimony,
the instructions of the Court, the attorneys’ questions, let us
know right then so that we can correct that situation. If it
means raising a hand, if it means speaking out, fine. Do it.
Interrupt if necessary if you can’t hear something. If you can’t
see something that you are supposed to see, let us know so that
we can adjust that and correct that situation. You can’t make an
informed choice about this case if you don’t see what’s going on
and you can’t hear what’s going on.

One of the designs of your fine courthouse is that some
of you seated on the front row are going to find that the court
reporter is between you and the witness stand. If you find out
that you can’t see the witness, we will move you. We will move
you to one of these other chairs on the end down here or one of
these other chairs where you can observe wherever you want to

-33

sit. You do have to be in the jury box but that’s important. We
can’t move the court reporter. That’s just the long and short of
it. So we will have to move you. Now when the Court instructs
you or during the course of arguments you will be seated in your
regular seat. During the course of the trial if you need to move
to see, let us know and we will let you move.

Again you are not to import anything by virtue of the
procedure the Court uses to conduct a trial. It is just the way
we do it. Suffice it to say, it is the most efficient way that
we use to conduct a trial. There will be some other things that
we will talk about from time to time during the trial but at this
time the attorneys have the opportunity to make their opening
statements. What they say again is not evidence but it may help
you to understand evidence as it is presented so please give them
your attention.

In the opening statements the State goes first and the
defendant goes after the State. Actually under our procedure the
defendant has the right to waive an opening statement and wait if
they want to but as I am given to understand both sides are going
to make their openings now. So please give them your attention.
What says the State?

(Whereupon, Ms. Hamlin and Mr. Phillips made opening
statements to the jury.)

MR. STETZER: Your Honor, one of the jurors has a
question.

-34

THE COURT: Yes, sir.

JUROR: If I might be moved.

THE COURT: Go ahead. Just wherever you find to be
comfortable, just as long as you are in that box. Can you see
okay there?

JUROR: Yes, sir.

THE COURT: Everybody else got a clear view of the
witness? All right. Go ahead.
DENNIS LOVELACE, being first duly sworn, testified as follows
during DIRECT EXAMINATION BY MR. STETZER:

Q. Good morning, Mr. Lovelace. Please state your full name so
the court reporter can get that down.
A. Dennis Ray Lovelace.
Q. Sir, what city do you live in?
A. Belmont, North Carolina.
Q. How long have you lived in that area?
A. Eight years.
Q. Are you familiar with the Catawba River near I-85, the I-85
bridge?
A. Yes, very familiar.
Q. How come you are so familiar with that?
A. I live about a half a mile, maybe three-quarters of a mile,
from it.
Q. Do you spend much time on the water?
A. All the time.
Lovelace - Direct/Stetzer - 34

-35

Q. What do you spend time on the water in?
A. I’ve got a pontoon boat and two jet skis and I am on the
water twenty-four/seven three sixty-five just about, fishing or
something.
Q. And you know Brenda Pierce?
A. Yes, I sure do.
Q. Who is that?
A. She is the lady I live with.
Q. Does she accompany you on the water from time to time?
A. Oh, yes, almost all the time.
Q. I want to talk to you about a time you were on the water on
May 5th of 2008 around lunchtime. Do you recall that?
A. Yes, I sure do.
Q. And what sticks out about that particular date and time for
you?
A. We were getting our jet skis ready for the summer and
stopped by Dale’s Superette on 74 to fill up with gas. There is
a boat landing right beside of Dale’s and we put our jet skis in
and started them up and went up north toward - under 74 bridge
toward 85 bridge just trying them out and when we went under the
85 bridge it starts around a little bend and I noticed that there
was a blue sedan parked down the hill on the embankment almost in
the water.
Q. Let me stop you there and go back to where you started. You
started at Dale’s. What is Dale’s?
Lovelace - Direct/Stetzer - 35

-36

A. Dale’s Superette is a gas station/store/bait shop,
everything, that you stop at right before you get to the boat
landing.
Q. And how close is that to the Catawba River?
A. Oh, gosh, a hundred feet.
Q. And there is a boat landing there?
A. Yes.
Q. And is that where you and Brenda put in your jet skis?
A. Yes.
Q. So Brenda was with you at this time?
A. Yes.
Q. And then you headed north and you passed under the I-85
bridge?
A. Yes.
Q. What was the next bridge you came to?
A. Well, after the 85 bridge there is not another bridge.
There is a 74 bridge and then the 85 bridge.
Q. So you went under the 74 bridge first?
A. Right. It’s right there.
Q. That’s Wilkinson Boulevard?
A. Right.
Q. And then the 85 bridge?
A. Right.
Q. Once you passed the I-85 bridge you started to tell us what
you saw. Tell us what you saw.
Lovelace - Direct/Stetzer - 36

-37

A. As we come around the bend everything - there was no one on
the water but us and as soon as I rounded the bend we looked to
the left and there was a car almost in the water on an
embankment. Two doors were open on it.
Q. Which two doors?
A. Driver’s side, both of them.
Q. Front and back on the driver’s side?
A. Front and back on the driver’s side.
Q. And how close to the water was the car?
A. Within inches. I mean inches. It did not lack much going
in at all.
Q. Did the car appear to be in good shape or was it damaged in
some manner?
A. I didn’t see no damage. I seen no damage.
Q. How steep was the embankment the car had A.
Very steep. It was a very steep embankment. You wouldn’t
be able to drive back up or anything. It would definitely - it
would be hard to walk up it.
Q. And what did you see, if anything, near the car?
A. Well, as I said, we actually passed the car and when we did
I did like this (demonstrating) for her to turn around and let’s
go back and that’s when we went back and I started to approaching
the car and I seen the doors open and I couldn’t see anything
because we was in the water and so I took the jet ski a little
closer, a little closer and a little closer and I stood up on the
Lovelace - Direct/Stetzer - 37

-38

jet ski about ten foot from the bank and noticed that there was a
body beside the car.

Q. Describe what you saw with the body, please.
A. The body was laying there feet facing the water with her
hands up. Her skirt was a little bit up and she was - she didn’t
look good. She was blue, purple looking and didn’t look good.
SO I turned around and hollered at Brenda and told Brenda - I
said, “Come here. There is a body on the bank.”
Q. And what did Brenda say?
A. Brenda says, “Fuck you, Skippy,” because we kid all the
time. I said, “No, I am serious. Come look at this body.” When
she got up there and she said, “Oh, my God,” I said, “Go call
911. You go back to Dale’s and I will go the other way.” So she
went back to Dale’s which meant going back to where we had put in
at. The other place towards the water’s edge was just under
development. Very few piers was put up out there. So I took off
that way and at each house - there is about four or five houses
and then the piers where they was building I was hollering the
whole time, help, call 911, help, call 911, and when I come up on
the construction site the guys - I turned around in the middle of
the lake and I asked him, “You got a cell phone,” and he held it
up and I said, “Call 911. There is a body down here.”
Q. And where was that?
A. That’s at the river’s edge.
Q. Okay. When you were having this conversation with Brenda,
Lovelace - Direct/Stetzer - 38

-39

what were you saying about the body?

A. I just told her that there was a body on the bank and she
thought I was kidding.
Q. I’m sorry. How far away was she from you?
A. Probably fifteen feet behind me.
Q. Out on the water?
A. Out on the water.
Q. And how loud were you talking to her?
A. Oh, very loud. Very loud. Both jet skis going, you have to
-you have to holler.
Q. At some point she used the F word back to you thinking you
were joking around?
A. Yes, she thought I was joking.
Q.
And then she saw it for herself? Do you know?
MR. PHILLIPS: Objection.
THE COURT: Sustained.
Q. Did she come to a position where she would have been able to
see it?
A. Yes, she sure did.
Q. After that you said you asked her to go to Dale’s to call
911. Did she leave you at that point in time?
A. Yes, rapidly.
Q. Did she head in the direction towards Dale’s?
A. Yes.
Q. Did you head in a different direction?
Lovelace - Direct/Stetzer - 39

-40

A. Yes. I went up north and she went back to Dale’s.
Q. Had you been around that area on the Catawba River before?
A. Oh, yes.
Q. Are you familiar with that area around the Catawba River?
A. Yes.
Q. Is there a fishing spot near where you found that body?
A. Yes.
Q. How far is that fishing spot from where you found the body?
A. There is actually several. There is one right beside of it
where maybe 200 feet give or take where you - about rock throwing
distance and the other one is on down close to 85 bridge.
Q. The one that was rock throwing distance away, did you see
anybody there?
A. No, sir.
Q. Did you see this man there (indicating defendant)?
A. No.
Q. That far away if there was somebody there, would you be able
to communicate with them by yelling?
MR. PHILLIPS: Objection.
THE COURT: Overruled.

Q. I’m sorry. You said A.
Sure, I could, yes.
Q. What is across the river from the location where you found
this body?
A. The whitewater park opened up across from it and it’s where
Lovelace - Direct/Stetzer - 40

-41

they actually put in the canoes. It is kind of just a little bit
up.

Q. Do you ever see kayakers in that area when you are out on
the water?
A. All the time.
Q. Did you see any kayakers on the water that day that you
recall?
A. No.
Q. But this would be something you would recall seeing most of
the time you are out on the water?
A. Yes.
Q. I think you described it to me like they are like ducks that
you guys have to avoid?
A. Yes. Yes. It is very narrow up through there and between
the water’s edge and the whitewater park now you have very little
waterway going up through there.
Q. At some point did you get off your jet ski?
A. Yes. When I turned around and come back I told the guy, the
construction guy, to call 911 for me. I turned around and I came
back. I was about knee deep in water and I was looking. I was
very leery. I eased up onto the bank about maybe a foot, enough
to look and see that she had a rope around her neck. I got very
scared and went back in the water, especially to hold onto my jet
ski because the jet ski never touched the bank.
Q. Did you have to be holding onto your jet ski the entire
Lovelace - Direct/Stetzer - 41

-42

time?

A. The entire time.
Q. I don’t have a jet ski. What happens if you are not holding
onto your jet ski?
A. It will float off. It will float off.
Q. So you never left your watercraft?
A. Never, except that one time when I stepped up on the bank
and then I got back and that’s one reason - it scared me and I
was getting back in the water but I had to hold onto my jet ski.
MR. STETZER: May I approach the witness?
THE COURT: All right.

Q. Mr. Lovelace, I am handing you what I have marked for
identification purposes as State’s Exhibit Number 1. Will you
look at that for me, please, and take your time. What is State’s
Exhibit Number 1 that I handed you?
A. It is a statement of exactly what I just told you.
Q. Is that a true and accurate copy of the statement you gave
police?
A.
Yes.
MR. STETZER: I move to admit State’s 1, Your Honor.
MR. PHILLIPS: No objection.
THE COURT: Very well. It will be received.
MR. STETZER: Move to publish State’s 1, Your Honor.
THE COURT: Very well.
MR. STETZER: The sheriff has fourteen copies.
Lovelace - Direct/Stetzer - 42

-43

THE COURT: Members of the jury, when the sheriff hands
you an exhibit, again you are to examine it carefully,
individually and without comment.

(Whereupon, State’s Exhibit 1 was published to the
jury.)

THE COURT: Does anyone need additional time to look at
this exhibit? If you do, just raise your hand. I don’t see any
hands. All right. Sheriff, you may retrieve the exhibit.

MR. STETZER: No further questions.

THE COURT: Cross examination.

MR. PHILLIPS: Thank you very much, Your Honor.
CROSS EXAMINATION BY MR. PHILLIPS:

Q. Mr. Lovelace, in State’s Exhibit 1 that you have in front of
you, who wrote this?
A. I think - it was my comment and I am not sure if it was
Agent Crowe or who it was because I had talked to so many people.
Q. Okay. So you talked to a lot of different people, didn’t
you?
A. Yes.
Q. And this was on May 13, 2008?
A. To the best of my knowledge.
Q. And the date of the event was May 5, 2008; is that right?
A. Yes.
Q. So this was about a week later?
A. Yes.
Lovelace - Cross/Phillips - 43

-44

Q. Okay, and you signed this statement, didn’t you?
A. Yes.
Q. And you put in the statement “I did not see anyone in the
immediate area around the body or the car;” is that right?
A. Right.
Q. You didn’t see Mr. Carver there, did you?
A. No.
Q. Okay. Did you see him around the body at all?
A. No.
Q. Did you see him place any type of ligature around Ms.
Yarmolenko’s neck?
A. No.
Q. Now you talked to Agent Crowe or Special Agent Crowe with
the SBI later than that date, didn’t you?
A. Later than the 13th?
Q. Yes. Did you talk to him December 16, 2008?
A. Yes, I talked to him a couple of different times.
Q. Do you recall talking to Agent Crowe?
A. Vaguely.
Q. Okay, and you testified just a moment ago that - did you go
up on the bank at all?
A. I stepped one foot up on the bank just to get a better look
but when I seen the rope I went back into the water. I didn’t
touch anything.
Q. Okay. Now didn’t you tell Agent Crowe that you were
Lovelace - Cross/Phillips - 44

-45

emphatic that you didn’t go up on the bank at all? Do you recall
telling him that?

A. I don’t recall.
Q. Okay. Do you recall what you told Agent Crowe?
A. I don’t know. I couldn’t answer that because I had talked
to so many different people at the time.
Q. I understand, and you also had an opportunity - did you talk
with Mr. Stetzer, also, concerning this case, the DA?
A. Yes.
Q. And didn’t you talk to him September 24, 2010, if you recall
that?
A. I believe I - yes.
Q. Okay, and did you go over your testimony at that time?
A. Yes.
Q. Okay. Now didn’t you tell Mr. Stetzer that you got off your
jet ski and went up and looked up under the car?
A. I was already off of my jet ski. When I seen the rope I
backed off into the water, grabbed my jet ski. I looked under
the car. I couldn’t see under. I looked around both sides
because there was a lump at the back - in the back seat that I
thought might have been a baby seat and I thought it might be a
baby got throwed out or something so I just looked. I never left
the water again.
Q. Okay.
A. I looked.
Lovelace - Cross/Phillips - 45

-46

Q. Okay, and this happened about two and a half years ago that
you recall?
A. Yes.
Q. And you talked to several different people, didn’t you?
A. Since when?
Q. Well, since May 5, 2008.
A. Oh, Lord, yes.
Q. And where did you talk to Mr. Stetzer? Was it up here at
the courthouse?
A. Yes.
Q. Was it in his office?
A. I believe so.
MR. PHILLIPS: No further questions, Your Honor.
REDIRECT EXAMINATION BY MR. STETZER:

Q. You never left the water?
A. I left the water when I just got up to look over to the body
but, no, actually leaving the water and walking up on the bank,
no. I walked up to where I could see and when I seen the rope
around her neck that’s when I backed off.
Q. I believe you talked to me probably twice at least. Have
you talked to Mr. Phillips or Mr. Ratchford?
A. No.
Q. They never called you to ask you questions?
A. No.
Q. Would you have talked to them if they had called you?
Lovelace - Redirect/Stetzer - 46

-47

A. Yeah.
Q. You talked to everybody who has called you?
A. Yeah. It surprised me that - I mean I don’t know if this is
relevant or not but it was like three or four days before anybody
even called me to ask me any questions besides Danny with the
Gazette office.
Q. Thank you. Nothing further.
RECROSS EXAMINATION BY MR. PHILLIPS:
Q. Just a couple of questions. So it surprised you that it
took the police three or four days to even talk to you about
this?
A. Yes.
Q. Did the police when they talked to you, did they ever take
your DNA or take a DNA sample from you?
A. No.
Q.
No further questions.
MR. STETZER: Nothing. Thank you.
THE COURT: Thank you, sir. You can stand down.
Members of the jury, we are going to take our morning recess
until a quarter after. Remember that you are not to discuss the
case or have any contact with any participant. Everybody else
remain seated while you enter and exit the courtroom. Thank you.

(Whereupon, the jury left the courtroom.)
MR. STETZER: May this witness be excused?
MR. PHILLIPS: No objection.

Lovelace - Recross/Phillips - 47

-48

THE COURT: Yes.

(Whereupon, the Court took a morning recess from 11:00
to 11:15 A.M. and thereafter reconvened with the defendant, all
counsel and the jury present.)

MS. HAMLIN: Your Honor, the State calls Ms. Brenda
Pierce.
BRENDA PIERCE, being first duly sworn, testified as follows
during DIRECT EXAMINATION BY MS. HAMLIN:

Q. Please state your full name.
A. Brenda Kazur Pierce.
Q. Do you live here in Gaston County?
A. Yes, ma’am.
Q. How long have you lived in Gaston County?
A. Approximately twenty-three years.
Q. Do you know someone named Dennis Lovelace?
A. Yes, ma’am.
Q. How do you know him?
A. He is my boyfriend.
Q. Was he your boyfriend back on May 5th of 2008?
A. Yes, ma’am.
Q. I am going to draw your attention back to that date. Did
you go to the Dale’s Superette boat landing back on May 5th of
2008?
A. Yes, ma’am, I did.
Q. Do you know approximately what time you arrived?
Pierce - Direct/Hamlin - 48

-49

A. About 12:30.
Q. In the afternoon?
A. Yes, ma’am.
Q. Who was with you?
A. Dennis Lovelace.
Q. And what did you do when you got to the boat landing?
A. We had got gas at Dale’s Superette, went to the boat landing
which is directly below that, and launched the jet skis.
Q. And so you both left on separate jet skis from the boat
landing?
A. Yes, ma’am.
Q. Do you recall about what direction of travel you were going?
A. We went left at the boat landing up towards the I-85 bridge
from Dale’s landing and then straight up this way.
Q. What, if anything, did you observe on the river bank while
you were jet skiing?
A. When we crossed underneath the I-85 bridge there was a blue
car down an embankment, a weeded embankment, and we bypassed that
and went on up the river to check the plugs in the back of the
ski so that they wouldn’t sink if the plugs were not inside,
turned around and came back down to the car that was down the
embankment.
Q. So when you passed by this area the first time, did you see
the car?
A. Yes, ma’am.
Pierce - Direct/Hamlin - 49

-50

Q. Do you know who saw it first?
A. We probably both saw it at the same time. We use hand
signals when we are skiing because it is loud. We pointed over
towards the car and kept going.
Q. And after you checked on the plugs and the jet skis, you
indicated that you then turned around and came back?
A. Yes, ma’am.
Q. Was that for the purpose of looking closer at the car?
A. Yes, ma’am.
Q. About what time was it then? How long had you been on the
river at that point?
A. We had probably been on the river for maybe ten to fifteen
minutes.
Q. Now when you returned back to the area where you saw the car
on the bank, can you describe what you saw?
A. Yes, ma’am. There was a car down an embankment, lots of
weeds around it. I was a little further back than Dennis. I was
on my ski here. He was on his ski here. Actually, I was just
actually trolleying back this way. Dennis was closer. He
motioned for me to come upwards because he said there is a body
over here.
Q. When you say he said there is a body, is this something that
was a hand signal of some sort or did he actually speak that?
A. He spoke that because, you know, the jet skis are just
idling. You can hear when they idle. He said come over here.
Pierce - Direct/Hamlin - 50

-51

He said there is a body over here.

Q. How far apart were you at that point?
A. Dennis and I were probably eight to ten feet apart from one
another.
Q. And you say when they are idling, and I’m not a jet skier so
I am not familiar, but are they still pretty loud at that point?
A. No, not very loud.
Q. How loud did Dennis speak at that point?
A. He was like, Brenda, come here, and then he is like come
here and he said there is a body over here and I didn’t believe
him but then whenever I trolleyed closer on my jet ski I had to
stand up to actually see, actually see the body.
Q. Okay. So when you got a little bit closer, did you go onto
the bank?
A. No, ma’am.
Q. How close did you get to the bank?
A. Probably eight to ten feet from the bank because there were
a lot of logs and debris in the water there. So you couldn’t get
real close to it.
Q. But Dennis got closer than you?
A. Yes. He was just - I was on this part and he was just a
little bit closer than what I was.
Q. And did Dennis go onto the bank?
A. Not while I was there.
Q. Now when you say that you stood up, did you actually stand
Pierce - Direct/Hamlin - 51

-52

up on your jet ski or did you get in the water and stand up?

A. No, ma’am. I stood up on the side of my jet ski. I held
onto the handles and propped myself up.
Q. And what were you able to see at that point?
A. I was able to see the young lady.
Q. Okay, and describe what you saw.
A. I could not see a lot except just for her face. The weeds
were around her face and I just saw her face mostly.
Q. But you were able to see the car?
A. Oh, yeah. The car was very visible.
Q. Okay. Did you notice any damage on the car?
A. No, not right offhand. I didn’t pay a lot of attention to
the car because when I saw the body I was pretty much in shock.
Q. At that point did you and Dennis continue talking back and
forth?
A. I actually sat there for a second. He says you have to go
call 911.
Q. Okay. Did you have a cell phone on you?
A. No, ma’am, not at that time.
Q. And what happened at that point?
A. When he told me to go call 911 I sat there for just a brief
second still in shock. He was like you have to go now, Brenda,
and so I immediately turned around with my jet ski and went back
to Dale’s boat landing.
Q. And then what happened?
Pierce - Direct/Hamlin - 52

-53

A. I tied my ski up and I ran - I didn’t even put flip flops on
or anything. I ran up to the Dale’s boat landing - up to the
Dale’s Superette. I still had my life vest on and swim trunks
and went inside and asked Ms. Sherry Robinson to please call 911
because we had found a body at the river.
Q. And did she dial 911 for you?
A. Yes, ma’am, she did because the phone was behind the
counter.
Q. But you were the actual one that got on the phone?
A. Yes, ma’am. As soon as she dialed 911 she handed the phone
to me.
Q. And you were the person that spoke to the 911 dispatcher?
A.
Yes.
MS. HAMLIN: Your Honor, may I approach?
THE COURT: All right.
Q. Ms. Pierce, I am going to show you what has been marked
State’s Exhibit 2. Do you recognize that?
A. Yes, ma’am, I do.
Q. And what is that?
A. That is a copy of the 911 call that I listened to.
Q. Okay. How do you know that is a copy of the 911 call that
you made?
A. Because I had to sign this with a detective and put the date
on it.
Q. Okay. So you reviewed that CD?
Pierce - Direct/Hamlin - 53

-54

A. Oh, yes.
Q. Now that particular State’s Exhibit 2, that CD, is that an
accurate depiction of the 911 phone call that you made back on
May 5th of 2008?
A. It is the exact phone call that I made.
Q. And you reviewed it?
A. Yes, ma’am.
Q. And you signed it and you initialed it?
A.
Yes, ma’am.
MS. HAMLIN: I offer into evidence State’s Exhibit 2.
MR. PHILLIPS: Objection, Your Honor. Lack of
foundation through the 911 operators and the custody agent of the

tape.

THE COURT: Overruled.

MS. HAMLIN: At this point, Your Honor, we would ask
that it be published to the jury.

THE COURT: Very well.

(Whereupon, State’s Exhibit 2 was played for the jury.)

MS. HAMLIN: No further questions of this witness.

THE COURT: Cross examination.

MR. PHILLIPS: Thank you, Your Honor.

CROSS EXAMINATION BY MR. PHILLIPS:

Q. Ms. Pierce, you talked to Agent Crowe October 8, 2008?
A. Yes, sir.
Q. Does that sound right?
Pierce - Cross/Phillips - 54

-55

A. Yes.
Q. It was a long time from when this happened, wasn’t it?
A. When I talked to Q.
It was several months before you talked to the police?
A. Yes. Yes.
Q. And how did the police get in touch with you? Do you
recall?
A. Mr. Crowe called - he called my work place and I think he
called my home but I know they told me at my work place that I
had to speak with Mr. Crowe.
Q. So that was about four or five months later when he talked
to you?
A. Yes, sir.
Q. And you were just out jet skiing that day with your
boyfriend, Mr. Lovelace; is that right?
A. Yes.
Q. And you came back to Dale’s Superette to call 911 because
you didn’t have a phone; is that right?
A. Yes.
Q. And Dennis Lovelace, he stayed behind, didn’t he?
A. Yes, sir.
Q. While you were there with him did he ever get on the river
bank?
A. No, sir.
Q. Did you ever see him put his foot on the river bank?
Pierce - Cross/Phillips - 55

-56

A. No, sir.
Q. Now did y’all talk about this after everything was over with
that day, you and Mr. Lovelace?
A. Yes, sir.
Q. Didn’t he tell you that he went up on the bank later on?
A. He did not say that he went up on the bank. He said that he
helped the rescue people move the logs and things so they could
get up there. As far as him going on the bank, no, sir, not
while I was there.
Q. Well, did he tell you that he did that after you left?
A. I thought that he - this is what I - I thought he went to
the bank after the rescue people were there. He said he went to
it and he saw the lady and he stepped back. He said that he
looked around the car but he was on - in the water about knee
deep when he was looking around.
Q. So he told you he never went up on the bank or never touched
the bank?
A. He said he stepped up to the bank.
Q. Okay, and you had to stand on top of your jet ski to even
see the body?
A. Yes, sir.
Q. And you really didn’t even know if that person was alive or
dead at the time when you made your 911 call?
A. I did not, no, sir.
Q. Okay, and you didn’t see Mark Carver anywhere out there, did
Pierce - Cross/Phillips - 56

-57

you?

A. No, sir, I did not.
Q. And did the police take your DNA?
A. No, sir, they did not.
Q. Did you ever see a john boat out there?
A. As I was traveling back to Dale’s, yes, sir, there was a
john boat right up by the I-85 bridge, more underneath it than up
towards the crime scene.
Q. And how many times did you talk to the police?
A. I talked to Detective Crowe once that I can remember. I
talked to Detective Terry a couple times and another detective
from the Mount Holly police department. I can’t recall his name
at this time.
Q. Okay. Was it all after October, though, October of ‘08? Is
that the first time you talked to the police?
A. Yes.
Q. When did you review the 911 tape?
A. 2-15 of this year, just last month.
Q. February of 2011?
A. Yes, sir.
Q. So it was about two and a half years later?
A. Yes, sir.
Q. Where did you do that?
A. At the Mount Holly police department.
Q. Did you write out a statement or did someone write your
Pierce - Cross/Phillips - 57

-58

statement out for you?

A. With Detective Crowe and Detective Terry, I think Detective
Crowe wrote my statement and I read over it and I signed it.

MR. PHILLIPS: No further questions, Your Honor.

THE COURT: Anything further?

MS. HAMLIN: Nothing further.

THE COURT: Thank you, ma’am.

MS. HAMLIN: Your Honor, may I ask that she be released

from her subpoena?
MR. PHILLIPS: No objection.
THE COURT: Very well. Thank you, ma’am.

A. Thank you.
MS. HAMLIN: Your Honor, the State is going to call Jane
Fisher.
JANE FISHER, being first duly sworn, testified as follows during
DIRECT EXAMINATION BY MS. HAMLIN:

Q. Please state your name.
A. My name is Jane Fisher.
Q. How are you employed?
A. I am with the State Employees Credit Union of North
Carolina.
Q. How long have you worked for the State Employees Credit
Union?
A. Thirteen years.
Q. What particular branch do you work for?
Fisher - Direct/Hamlin - 58

-59

A. I work for the Charlotte University City Boulevard branch.
Q. And were you so employed back on May 5th of 2008?
A. Yes, ma’am.
Q. I am going to ask you a couple of questions. Are you
familiar with the - does your bank at the UNCC, that branch, does
it have a video surveillance system?
A. Yes, it does. It is a digital.
Q. And are you familiar with how that particular video
surveillance system is maintained?
A. Yes.
Q. Tell the jury a little bit about the type of surveillance it
is.
A. Pretty much the type of surveillance we have is a digital
system. We have several cameras located throughout our location,
our branch, and it takes and records pictures throughout the
whole day.
Q. And does this particular video surveillance equipment also
take pictures of patrons conducting banking transactions?
A. Yes, ma’am.
Q. Does the video surveillance that you have, that digital
video surveillance, does it include the date and time on the
video?
A. Yes, ma’am.
Q. And you indicated earlier it takes pictures throughout the
day?
Fisher - Direct/Hamlin - 59

-60

A. (Indicating yes)
Q. Okay. So does it generate a video or does it generate
pictures?
A. It is a video and then we can take pictures from the video.
th

Q. So now back on May 5 of 2008 were you working back at the
University Boulevard State Employees Credit Union back then?
A. Yes.
Q. And was the video surveillance working that day?
A. That’s correct. Yes, it was.
Q. And was it working properly?
A. Yes.
th

Q. Shortly after May 5 of 2008 did you speak with someone from
the Mount Holly Police Department?
A. Yes, ma’am.
Q. Okay. Who came to talk to you?
A. I do not remember their names. I remember there was two
gentlemen.
Q. Okay, and did you speak to them also about the video
surveillance equipment?
A. Yes, we did.
Q. Okay, and did they ask you to go back in time to that May
5th of 2008 time period and try to locate some video surveillance?
A. Yes, they did.
Q. Did you do that?
A. Yes, we did.
Fisher - Direct/Hamlin - 60

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Q. Were you able to do that?
A. Yes.
Q. Okay, and from that did you at that point download and
generate still photographs from back on May 5th of 2008?
A. Correct. It had to come from our main office in Raleigh
but, yes, we located it. They sent the information to us.
Q. And at that point did you provide those photographs to the
police department?
A.
Yes.
MS. HAMLIN: May I approach with State’s Exhibits 3, 4,
5 and 6?
THE COURT: Very well.

Q. Ms. Fisher, I am going to go ahead and approach with State’s
Exhibits 3, 4, 5 and 6, if you can just take a moment and look
over those.
A. Okay.
Q. Do you recognize those exhibits?
A. Yes, ma’am.
Q. How do you recognize them?
A. Pretty much is their breakdown. It tells us what camera it
was from, what location of the State Employees Credit Union the
photo was from, the still I should say. It also has the date.
Q. And what are those?
A. Pretty much all four are from actually teller number four
from the Charlotte University City Boulevard and the date was May
Fisher - Direct/Hamlin - 61

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5th of 2008.

Q. And were you the individual who retrieved those photographs
from the video surveillance equipment?
A. Like I said, the actual retrieval from the equipment comes
from our main office in Raleigh and then they e-mail to us and
then that is how I was able to print it to the detectives.
Q. So you were able to download it and then print it out for
the detectives?
A. Correct.
Q. Okay, and were those the particular pictures that you
provided the detectives?
A. Yes, ma’am.
Q. Have there been any alterations, deletions, anything to
those still photographs?
A. No, ma’am.
Q. And do those photographs have a date and a time stamp on
them?
A.
Yes, they do.
MS. HAMLIN: I offer into evidence State’s Exhibits 3
through 6.
MR. PHILLIPS: No objection.
THE COURT: Let them be received.

Q. And what is the date and time stamp on each of those
exhibits starting with State’s Exhibit 3?
A. May 5, 2008 at 10:20:55 A.M. Exhibit Number 4, it is also
Fisher - Direct/Hamlin - 62

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May 5, 2008, 10:20:55 A.M. also. Exhibit Number 5, May 5, 2008,

10:18:51 A.M., and the last one is May 5, 2008, 10:18:23 A.M.
MS. HAMLIN: We ask that those be published to the jury,
Your Honor.

THE COURT: Very well.

(Whereupon, State’s Exhibits 3 through 6 were published

to the jury.)
MS. HAMLIN: Nothing further.
CROSS EXAMINATION BY MR. PHILLIPS:

Q. Ms. Fisher, were you working on May 5, 2008?
A. Yes.
Q. And did you see Ms. Yarmalenko come in the bank or the
credit union?
A. I did not personally see her.
Q. Okay, and you recall what day of the week that was?
A. I believe it was a Monday.
Q. Okay, and do you know what business she had in the credit
union that day?
A. Not for sure. Just going by the photos, it looks like she
is at the teller line so she probably did some type of teller
transaction. I don’t know if she did a withdrawal, deposit.
Q. Do you know whether she was making a withdrawal or not?
A. I do not know that.
Q. Did you check into that?
A. I was not asked to check into that.
Fisher - Cross/Philips - 63

-64

Q. The police didn’t ask you - excuse me.
A. I’m sorry. Go ahead.
Q. I said did the police not ask you to see what her
transaction was?
A. If they did I do not recall.
Q. Okay, and you didn’t bring that with you?
A. No, sir.
Q.
No further questions.
MS. HAMLIN: Nothing further.
THE COURT: All right. Thank you, ma’am.
MS. HAMLIN: Your Honor, I ask that Ms. Fisher be
released from her subpoena.
MR. PHILLIPS: No objection.
THE COURT: Very well.

DEBBIE MCCLAIN, being first duly sworn, testified as follows
during DIRECT EXAMINATION BY MS. HAMLIN:

Q. State your name.
A. Debbie McClain.
Q. How are you employed?
A. Goodwill Industries of the southern Piedmont.
Q. How long have you worked there?
A. Twelve years.
Q. Were you so employed back on May 5th of 2008?
A. Yes, ma’am.
Q. What are your specific duties at the Goodwill Industries?
McClain - Direct/Hamlin - 64

-65

A. I handle asset protection and pre-employment screenings.
th

Q. Back on May 5 of 2008 were you in charge of the store
located at University Boulevard?
A. Yes, ma’am.
Q. Are you still in charge of that store?
A. Yes, ma’am.
Q. Do you keep video surveillance at your Goodwill on
University Boulevard?
A. It is saved on the DVR for thirty to forty-five days.
Q. And this video surveillance, does it cover or does it
videotape the donation drop off site?
A. Yes, ma’am.
Q. At that location?
A. Yes, ma’am.
Q. Now what type of surveillance is used at that particular
Goodwill location?
A. We have Hunt DVR’s and analog cameras.
Q. And does the video equipment record the date and time stamp
of what it is recording when it is recording it?
A. Yes, ma’am.
Q. Now back on May 5th of 2008, was this video surveillance
working properly?
A. Yes, ma’am.
Q. And was it recording the donation drop off site area that
day?
McClain - Direct/Hamlin - 65

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A.
Yes, ma’am.
MS. HAMLIN: May I approach?
THE COURT: Yes.
Q. Let me show you what has been marked State’s Exhibit 7. Do
you recognize that?
A. Yes, ma’am.
Q. How do you recognize that?
A. It is - my initials are on it and my signature but it is a
copy of the store surveillance for that day.
Q. Okay. You say your initials are on it and you signed it and
dated it?
A. Yes, ma’am.
Q. Okay. So you actually reviewed that particular CD?
A. Yes, ma’am.
Q. Okay, and when did you review it most recently?
A. Today.
Q. Okay. Prior to that you have reviewed the CD before?
A. Yes, ma’am.
Q. Now after you reviewed it today, does it appear that the
video equipment was working properly?
A. Yes, ma’am.
Q. And is there a date and time stamp on it?
A. Yes, ma’am.
Q. And that date and time stamp that is located on that video,
is it accurate to the best of your knowledge?
McClain - Direct/Hamlin - 66

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A. Yes, ma’am.
Q. Do you recall what was the date and time stamp on that
video?
A. It was approximately 10:33 on May 5th of ‘08.
Q. Now upon copying were you the person that actually copied
that video?
A. Yes, ma’am.
Q. And did you provide it to the police?
A. Yes, ma’am.
Q. Okay. Did they come to your location and pick it up from
you?
A. Yes, ma’am, they did.
Q. Now while you were copying it and then of course reviewing
it on whatever occasions you reviewed it, did you alter or change
it in any way?
A. No, ma’am.
Q. And after you downloaded a copy of that surveillance, did
you keep it secure until you provided it to the police?
A.
Yes, ma’am.
MS. HAMLIN: I offer in evidence State’s Exhibit 7.
MR. PHILLIPS: No objection.
THE COURT: Very well. It will be received.
MS. HAMLIN: Nothing further from this witness.
THE COURT: Questions?
MR. PHILLIPS: No questions, Your Honor.
McClain - Direct/Hamlin - 67

-68

THE COURT: Thank you, ma’am. You can step down. If
you will just leave that with the court reporter, please.

MS. HAMLIN: We would ask that this witness be excused
from her subpoena.

MR. RATCHFORD: Your Honor, at this time we would ask
that she stay for - I think there is a supplement witness - just
till that testimony is heard.

THE COURT: All right.
JASON BREIDENSTEIN, being first duly sworn, testified as follows
during DIRECT EXAMINATION BY MS. HAMLIN:

Q. Please state your name.
A. Jason Lee Breidenstein.
Q. Mr. Breidenstein, are you from the Charlotte area?
A. Yes.
Q. I am going to draw your attention back to May 5th of 2008.
Where were you employed back then?
A. Goodwill Industries of the Southern Piedmont.
Q. In which particular location or branch were you employed?
A. UNC location.
Q. And what were your duties back then?
A. I was a donation processor. I would take donations from
people driving up to the drive through, sort them out, hand them
receipts if they asked for them.
Q. Let me draw your attention again back to May 5, 2008. Were
you working during the morning hours of that day at the Goodwill
Breidenstein - Direct/Hamlin - 68

-69

at the UNCC branch?

A. Yes, I was.
Q. And on that day were your duties - did they include picking
up donation items from the drive through customers?
A. Yes.
th

Q. Now shortly after May 5 of 2008 did you or do you recall
the police coming to speak with you?
A. Yes, I spoke with two detectives.
Q. Did the police tell you why they were there to speak with
you?
A. Yes. They showed me a surveillance video.
Q. And when the police spoke to you and they showed you this
surveillance video, do you recall what it was a video of?
A. Donation from a young woman who was making a donation.
Q. And did you later learn who that young woman was?
A. Yes. Irina Yarmolenko.
Q. Now after you viewed that surveillance video on that day
with the detectives, did you actually remember seeing the victim,
Irina Yarmolenko, during those morning hours on May 5th of 2008?
A. Yes.
Q. Did you speak to Irina that day?
A. General pleasantries, how are you doing today, just stuff
like that.
Q. And how did she appear to you?
A. Normal. No stress, nothing like that, just happy go lucky.
Breidenstein - Direct/Hamlin - 69

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Q. Was she alone when she donated those items?
A. Yes.
Q. And she actually pulled up in her car, right?
A. Yes, ma’am.
Q. And she helped you unload those items?
A. Yes.
Q. I am going to approach with State’s Exhibit 7. I show this
to you. Do you recognize that?
A. Yes, I do.
Q. Okay. What is State’s Exhibit 7?
A. It is the surveillance video from the drive through.
Q. How do you recognize it as being that particular video?
A. It has got my signature and the date on it.
Q. And when was the most recent time you reviewed that video?
A. This morning.
Q. Okay, and that video, State’s Exhibit 7, does it accurately
depict the events or the exchange between you and Ms. Irina
Yarmolenko back on May 5th of 2008?
A.
Yes.
MS. HAMLIN: Your Honor, at this point I would ask that
that particular video be published to the jury.

THE COURT: No objection.

(Whereupon, State’s Exhibit 7 was published to the

jury.)

Q. Was that the entire exchange that you had with Ms.
Breidenstein - Direct/Hamlin - 70

-71

Yarmolenko?

A. Yes, ma’am.
Q. And of course there is no sound?
A. Right.
Q. The video indicated on its time stamp that it was 10:33 A.M.
back on May 5, 2008. Does that appear to be the time that you
had an exchange with her?
A. Yes, ma’am.
Q.
Nothing further.
THE COURT: Cross examination.
MR. PHILLIPS: Thank you, Your Honor.
CROSS EXAMINATION BY MR. PHILLIPS:

Q. Do you recall what items she gave you?
A. No, I don’t recall exactly what it was but I do know that
they were in large burlap coffee sacks, most of the donations.
Q. Okay, and do you recall what type of conversation that you
did have?
A. Like I said, just pleasantries. How are you doing today,
how’s the weather.
Q. Okay, and that was pretty much it. How long was she there,
about two or three minutes?
A.
Something like that.
MR. PHILLIPS: No further questions, Your Honor.
MS. HAMLIN: Nothing further, Your Honor.
THE COURT: Thank you, sir. You can step down.
Breidenstein - Cross/Phillips - 71

-72

MS. HAMLIN: I ask that he and Ms. McClain be released

from their subpoena.
THE COURT: All right. They may be released.
MS. HAMLIN: Thank you, Your Honor.

DIANE CARLTON, being first duly sworn, testified as follows
during DIRECT EXAMINATION BY MR. STETZER:

Q. Good afternoon. Tell us your name.
A. Diana Carlton.
Q. And where do you live?
A. I live in Washington, D.C. now.
Q. And do you know or did you know Irina Yarmolenko?
A. She worked with me at the University Times paper at UNC
Charlotte. She was one of my photographers and writers.
Q. So were you a student there at the same time she was?
A. Yes.
Q. Are you no longer a student there?
A. That is correct.
Q. Did you graduate from UNCC?
A. I transferred to Georgetown my final semester.
Q. Were you and Irina also friends?
A. Yes. We hung out quite a few times, away from the paper,
different events on campus.
Q. Would you consider you all close friends?
A. Yes.
Q. And you were involved in the newspaper at the school?
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A. Yes.
Q. What was your responsibility at the newspaper?
A. I was photo editor and a writer.
Q. Did Irina share your interest in photography?
A. Yes, absolutely.
Q. How interested was she in photography?
A. She liked learning all different aspects. She was taking a
class to learn more about film photography so she could develop
pictures herself and that sort of thing.
Q. Did you guys discuss her use of the film camera?
A. Yes. Like different ways for best lighting or different
styles of action photography, absolutely.
Q. And not to be obvious, but most of us have digital cameras
now. These film cameras actually use film?
A. They actually use film, yes.
Q. And when you move the advance thing on the camera, what
happens to the film if you know?
A. It changes to the next frame.
Q. And you have to take the film out to have it developed; is
that right?
A. You have to either wind it yourself manually or you can take
it to a camera shop and have them do it for you.
Q. So shortly before her murder was she interested more in film
photography or digital photography or both equally?
A. Both equally.
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Q. Did she have both types of cameras? Do you know?
A. Yes.
Q. Did she like to take outdoor shots?
A. Yes.
Q. Did you know that she was moving to Chapel Hill?
A. (Indicating yes)
Q. Do you know whether she was excited about that?
A. Oh, yes, she was really excited.
Q. Was that a dream of hers?
A. Yeah.
Q. Do you know whether she was interested in hiking and
camping, things like that?
A. Oh, yes, absolutely. We had talked about a couple months
before she was killed going on a hiking trip with a couple of
other people after the end of the school year.
Q. So this wasn’t a lady afraid of the woods or the outdoors?
A. No.
Q. Did you know about her trip to Alaska, her hiking up there?
A. Yes.
Q. When is the last time you spoke with Irina?
A. It was probably the last week of April. My brother and I
were trying to squeeze in time to cover the Olympic trials that
were being held at the Whitewater Center and I was talking to her
about different assignments that I would have for the summer if
she wanted to work with me on that and there was the amnesty
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international work tour that was coming up that she also had
talked to me that she wanted to help me with this year or next
year.

Q. So just so I am clear, she was doing photo assignments for
the newspaper?
A. (Indicating yes)
Q. She was doing photo assignments for her class?
A. Yes, that’s correct.
Q. And you said it was the last week of April that you spoke
th

to her. She was murdered May 5 . How do you remember that so
clearly?

A. Because it was a really crazy week and I was trying to fit
in going to the Whitewater Center and she was wanting to know if
anybody could go in there or if you just had to have a press pass
or what type of thing because she was interested in getting some
like action photography shots of like the kayakers or people
rafting down the river. She thought that would be really cool to
add to her portfolio.
Q. And this conversation was sometime the last week of April,
2008?
A. (Indicating yes)
Q. Do you know if she knew how to get to the Whitewater Center?
A. She didn’t but she asked me if it was close to the
university and I gave her rough directions of how to get there.
Q. And it is not close to the university, is it?
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A. It’s not too far. I mean roughly speaking it’s not that far
because I commuted two hours to get home every time I went home
to North Carolina so by distance it is not that far.
Q. Did you have to cross over the Catawba River and 85 during
your commute?
A. (Indicating yes)
Q. So if the Whitewater Center in that direction from Charlotte
on 85 A.
It is just off the 495.
Q. 485?
A. Yeah.
Q. Towards Gaston County?
A. Yes.
Q. I am handing you what I have marked for identification
purposes as State’s Exhibit Number 8. Can you tell me what I
have just handed you?
A. It’s a picture of Iri.
Q. Does that picture truly and accurately depict Iri as you
remember her?
A. Yes.
Q.
All right. Thank you.
MR. STETZER: Move to admit State’s 8.
THE COURT: Let it be received.
MR. STETZER: May I publish State’s 8?
THE COURT: Yes.
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(Whereupon, State’s Exhibit 8 was published to the
jury.)

Q. If you know, when did Iri plan to go to the river to take
pictures of kayakers?
A. I remember she said she wanted to go before the end of the
semester but the exact time I don’t recall.
Q. When would the semester have ended?
A. In the last - mid May.
Q. Mid May, and when was your conversation with her?
A. It was the last week in April.
Q. Thank you. How soon - how close before her birthday was
that conversation?
A. A couple of days. It was the 2nd so maybe three or four days
max.
Q.
Thank you. No further questions.
THE COURT: Cross.
MR. PHILLIPS: Thank you, Your Honor.
CROSS EXAMINATION BY MR. PHILLIPS:

Q. Ms. Carlton, you have been to the Whitewater Center?
A. Yes.
Q. Was that a yes?
A. Yes.
Q. Okay, and the Whitewater Center, it is located in
Mecklenburg County, is it not?
A. I believe so. I am not exactly sure how it is actually - I
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know how to get there but I don’t know where it lies, in what
county.

Q. Well, it is not at all connected to the Catawba River, is
it?
A. It spins off of the river.
Q. Well, is it not a man made - not a device but it is man
made?
A. Structurally, yes, but they do have to go into the river,
the kayakers do, at some point.
Q. But the kayakers, they kayak into Whitewater Center, do they
not?
A. As well, yes.
Q. And the Olympic trials, they were there at the Whitewater
Center, not in the river?
A. Yes, they were at the Whitewater Center?
Q. They were at the Whitewater Center?
A. Yes.
Q. And the Whitewater Center is concrete, is it not?
A. I do believe so.
Q. So it is not in the river at all. The Catawba River has no
concrete.
A. Right, but it is near the Catawba River.
Q. It is near it but it is not connected to the Catawba River.
A. I am not sure of the exact logistics.
Q. And where Ms. Yarmolenko’s body was found was in Gaston
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County. Are you aware of that?

A. Yes.
Q. And Gaston County is not connected to the Whitewater Center,
correct?
A. I am not sure exactly how it is laid out.
Q. But you told her how to get there, did you not?
A. The rough directions of how Q.
How did you get her to get there?
A. 85 South to 485.
Q. Okay, and 485 doesn’t come into Gaston County, does it?
A. I honestly don’t remember.
Q. Okay. How long were you a student at UNCC?
A. For four years.
Q. And you told her to take 85 South to 485 and that was how
you told her to get to the Whitewater Center?
A. Yes.
Q. Did you ever tell her to go across the I-85 bridge into
Gaston County?
A. I don’t recall.
Q. Did you write any of these directions down for her?
A. No.
Q. Did you ever give your statement to the police?
A. By phone I guess.
Q. Okay. Who did you talk to?
A. I don’t recall.
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Q. Okay, but you did talk to Mr. Stetzer, didn’t you?
A. Yes.
Q. And when did you talk to him?
A. In October.
Q. Was that by phone?
A. Yes.
Q. And you told him that she was wanting to go to the
Whitewater Center to take photographs of people kayaking?
A. And rafters.
Q. At the Whitewater Center; is that right?
A. Yes.
Q. Do you know what kind of camera she had?
A. I think it was a Canon but I can’t remember exactly.
Q. Did she ever tell you that she had planned to go to the
Whitewater Center May 5, 2008?
A. She said she wanted to go take pictures of the people
kayaking and rafting, that she wanted to add those photos to her
portfolio, but she didn’t give me an exact date.
Q. Was there any type of deadline for your paper?
A. There was but I can’t remember exactly what it was, what the
date was.
Q. Again now what was your position with the paper?
A. I was photo editor and I was a writer.
Q. But you didn’t know the deadline?
A. I can’t remember the exact date at this point.
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Q. What type of story was it going to be involving, just the
Olympic trials?
A. The one I was working on, yes, the Olympic trials.
Q. Do you recall where the Olympics were held in 2008?
A. No, I really don’t.
Q. You didn’t really follow the Olympics, did you?
A. Not entirely, no.
Q. She never told you that she wanted to go to the river banks
of the Catawba River?
A. No, we didn’t talk about that.
MR. PHILLIPS: No further questions.
REDIRECT EXAMINATION BY MR. STETZER:

Q. So what you know is that she wanted to take pictures of
kayakers and rafters?
A. Yes.
Q. And from Mr. Phillips’ questions and your answers, it
appears that you are unclear about how the river is connected to
the Whitewater Center but you believe they are connected somehow?
MR. PHILLIPS: Objection to the leading.
THE COURT: Overruled.

Q. You believe they are connected somehow?
A. Yes. I think they have got to go out into the water at some
point.
Q.
They do and your information MR.
PHILLIPS: Objection.
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THE COURT: Sustained.

Q. The information, to the best of your knowledge, all the
information Iri Yarmolenko had about the Whitewater Center and
the Catawba River, came from you; is that correct?
MR. PHILLIPS: Objection.
THE COURT: Sustained.

Q. To the best of your knowledge, did all of Iri’s information
about the Whitewater Center and the Catawba River come from you?
MR. PHILLIPS: Objection.
THE COURT: Sustained.

Q. Are you aware of other sources, if you know - do you know
other sources Iri would have about information about the
Whitewater River?
A. I am not aware of any, no.
Q. Okay, and you did talk to her about it?
A. Yes.
Q. Shortly after that conversation - pardon me. How long after
that conversation was she found dead beside the Catawba River?
A. Just a couple of days.
Q.
Thank you. No further questions.
THE COURT: Anything further?
MR. PHILLIPS: No further questions.
MR. STETZER: May this witness be excused?
MR. PHILLIPS: No objection.
THE COURT: Very well. Thank you.
Carlton - Redirect/Stetzer - 82

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MR. STETZER: Thank you, ma’am.
RANDY KISER, being first duly sworn, testified as follows during
DIRECT EXAMINATION BY MR. STETZER:

Q. State your name, sir.
A. Randy Kiser.
Q. Back in 2008 how were you employed?
A. I was with the Gaston County Family YMCA at the Belmont
branch.
Q. And how long did you work there?
A. I was there eight years at that time.
Q. And where is that YMCA located?
A. It is right on the Belmont/Mount Holly city limit line there
in Belmont. Belmont address but we are in the city of Mount
Holly.
Q. Yes, sir. What is the address, the street address if you
recall?
A. It is 196 YMCA Drive.
Q. What is directly east of the Family YMCA?
A. East would be the Catawba River.
Q. And how far would that be?
A. I would say less than a mile.
Q. Can you get from the YMCA property to the Catawba River by
car?
A. Not directly on the YMCA property.
Q. How would you have to do that instead?
Kiser - Direct/Stetzer - 83

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A. You would have to access it beside the YMCA property.
Q. What is beside the YMCA property?
A. There is a housing development there or townhomes under
construction there at that time.
Q. Mr. Kiser, I am putting in front of you what I have marked
as State’s Exhibit Number 9 for identification purposes. Take a
look at that for me, please.
A. Okay.
Q. What does that State’s Exhibit 9 depict?
A. It is an overview of where the YMCA is located and the
interstate and that kind of stuff.
Q. Do you recognize that area from this photograph?
A. Yes.
Q. Is this photograph a true and accurate depiction of where
things were located in May of 2008?
A. Yes.
Q. Thank you. Would this assist in illustrating your testimony
today?
A.
Sure.
MR. STETZER: Move to admit State’s 9, Your Honor.
THE COURT: Received.
(Witness leaves stand and stands in front of the jury.)
Q. Show us where the YMCA is.
A. This would be it right here, right down YMCA Drive.
Q. Okay, and you mentioned the neighborhood. Can you show us
Kiser - Direct/Stetzer - 84

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on the map where that is?

A. Right. That is in this area here.
Q. I ask you to take that blue marker right there and circle
the Stowe Y for me so the record will have where that is.
A. (Witness complies with request)
Q. Now you said directly east was the Catawba River. Do you
see that?
A. Yes.
Q. And can you point to the jury for that?
A. Right here.
Q. Right, and can you come - you said there were no roads to
the river from the YMCA. How would you get there instead? What
possible alternatives are there instead?
A. You can go down through here and there used to be a pipeline
that you could access here until the construction started, but
you would actually have to go this way. There is nothing but
woods here.
Q. Well, talk to me about May of 2008. What was the
alternative to get there?
A. Right. Coming down through this area (indicating).
Q. Okay, and coming through your parking lot can you see going
into this neighborhood?
A. Yes.
Q. Thank you. You can resume your seat.
A. (Witness returns to stand)
Kiser - Direct/Stetzer - 85

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Q. In your parking lot does it still have a surveillance
system?
A. Yes.
Q. Back in 2008 was that surveillance system working?
A. Yes.
Q. Who was responsible for maintaining that surveillance
system?
A. That would be me.
Q. Back in 2008 was that surveillance system capable of making
an accurate recording?
A. Yes.
Q. Was it functioning properly on May 5th of 2008?
A. Yes.
Q. Have you reviewed the video from 2008?
A. Yes.
Q. Did you also take that video and prepare anything from the
video?
A. Yes.
Q. Tell me what you did.
A. I took some images and some video and turned that over to
the Mount Holly police department.
Q. Did that system maintain a date and time stamp?
A. Yes.
Q. Was that accurate?
A. Yes.
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Q. Does that show up on the still images you printed?
A. Yes.
Q. I show you what I have marked as State’s Exhibits Number 10
and 11 for identification purposes. Take a look at those for me,
please.
A. Okay.
Q. What are they?
A. Those are the images from the cameras at the YMCA.
Q. Those are images that you printed from the system?
A. No, I did not print these.
Q. How did those get created?
A. I don’t know how these got created but those are the images.
Q. Did you review the videos that contained those still images?
A. Yes.
Q. And are those images true and accurate still photographs
from the videos that you had and the videos you made?
A.
Right. Yes.
MR. STETZER: Move to admit 10 and 11, Your Honor.
MR. PHILLIPS: Objection. May I approach with Mr.
Stetzer?
THE COURT: All right.

`
(Conference at the bench with counsel)
MR. PHILLIPS: No objection.
THE COURT: Let it be received.
MR. STETZER: Nothing further.

Kiser - Direct/Stetzer - 87

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THE COURT: Cross examination.

MR. PHILLIPS: Thank you, Your Honor.
CROSS EXAMINATION BY MR. PHILLIPS:

Q. Mr. Kiser, you were there in May of 2008?
A. That’s correct.
Q. And there was a lot of construction going on back then, not
at the Y but the adjacent property?
A. (Indicating yes)
Q. And there was a lot of bulldozing going on?
A. I’m not sure what kind of activity.
Q. Have you seen heavy equipment out there?
A. At times.
Q. Okay. Did you see any heavy equipment May 5, 2008 or do you
recall?
A. I don’t recall no specific date.
Q. Yes, sir, and the only thing you were asked to do was to
retrieve any photographs on your surveillance?
A. Any photographs or video that we had. Mount Holly PD was
aware that we did have a camera system with video recording
capabilities and still image capabilities.
Q. And you cannot access the river from your property?
A. No, not by vehicle but by walking, sure.
Q. Can you access the Whitewater Center from your property?
A. I would assume that you could by crossing the river there.
Q. Okay, but you have to go all the way across the river
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though?

A. That’s my understanding, where the whitewater property is.
Q. It is not in Gaston County, is it?
A. It is my understanding it is in Mecklenburg County.
Q. Yes, sir, and do you recall when you talked to the police
first?
A.
No, I don’t recall that exact date.
MR. PHILLIPS: That’s all, Your Honor.
MR. STETZER: Nothing further.
THE COURT: Thank you, sir. All right. Members of the
jury, at this time we will go ahead and take our recess for the
day. I understand it is about twenty minutes early but you would
be due a break about now anyway so we will give you a break and a
recess. Remember you are not to discuss the case with anyone or
form any opinions about the case. Don’t visit the scene, watch
or listen to any media accounts, make any type of independent
investigation and do not have any contact with any participant.
We will resume at 9:30. The sheriff will tell you where he needs
you to report back to in the morning so that we may resume at

9:30. Thank you for your attention. Regarding your notes, you
can leave them in your seats if you want to. I don’t believe
they will be bothered. We haven’t had any bothered before but it
is your own personal property and if you want to take it with
you, that’s fine. That’s up to you. Thank you for your
attention.
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(Whereupon, the Court took an overnight recess at 12:45

P.M.)

Kiser - Cross/Phillips - 90

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Kiser - Cross/Phillips - 91

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF GASTON 08 CRS 68290

STATE OF NORTH CAROLINA, )
)
VS )
)
MARK BRADLEY CARVER, )
)
Defendant. )
)

TRANSCRIPT OF TRIAL

MARCH 16, 2011

PAGES 90 - 244

VOLUME III OF V

MITZY BONDURANT
OFFICIAL COURT REPORTER
325 NORTH MARIETTA STREET, SUITE 4135
GASTONIA, NC 28052
(704) 852-3173

-91

I N D E X

STATE’S
WITNESSES DIRECT CROSS REDIRECT RECROSS

Lloyd Addis 92 106
William Terry 111 198 213 217
Jim Workman 219 237 242 243

E X H I B I T S

State’s
Exhibit # Marked Received

12 -Carver statement 102 103
13 -CD of Exhibits 14-36 120 122
14-36 -Photos 120 121
37 -Evidence bag 132
38 -Flowered bag 134 134
39 -Evidence bag 136
40 -Bungee cord 138 138
41 -Outer envelope 139
42 -Inner envelope 139
43 -Camera 140 141
44 -Photo 149 150
45 -Photo 150 151
46 -Photo 151 151
47 -Box w/swabbings 152
48 -Envelope w/ribbon 153 154
49 -Envelope w/drawstring 153 155
50 -Envelope w/bungee cord 153 156
51 -Bag w/blood sample 157
52 -Bag w/Exhibit 54 158
53 -Envelope w/blood sample 157 158
54 -Sexual assault kit 159 160
55 -Outer envelope 166
56 -Inner envelope 167
57 -Envelope w/swabbing 168 169
58 -Envelope w/swabbing 168 170
59 -Envelope w/swabbing 168
60 -Envelope w/swabbing 168 171
61 -Envelope w/swabbing 168 171
62 -Envelope w/buccal swabs 178
63 -Envelope w/ Carver swab 179 180
64 -Envelope w/Cassada swab 179 181

-92

March 16, 2011 at 9:30 A.M.
(The following proceedings were held in open court with

the defendant, all counsel and the jury present.)
THE COURT: Good morning.
JURY: Good morning.
THE COURT: Welcome back. Everybody got your notes that

wants notes? All right. What says the State?

MS. HAMLIN: Your Honor, the State would call Detective
Addis.
LLOYD ADDIS, being first duly sworn, testified as follows during
DIRECT EXAMINATION BY MS. HAMLIN:

Q. State your name.
A. Detective Lloyd Michael Addis.
Q. How are you employed?
A. I work as a detective for Mount Holly Police Department.
Q. And as a detective what specific duties do you have?
A. Investigate various criminal offenses, mainly drug offenses
at this time.
Q. How long have you been employed with the Mount Holly Police
Department?
A. Approximately ten years.
Q. And were you so employed back on May 5th of 2008?
A. Yes.
Q. Now back on that particular date did you respond to a wooded
area near the Catawba River in Mount Holly?
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A. Yes.
Q. Why did you respond to that area?
A. I was off duty and received a phone call in reference to a
homicide that had occurred and was asked to go get a search
warrant for the vehicle that was on the scene.
Q. So when you responded were - well, actually this area where
you responded, was it located in Gaston County?
A. Yes.
Q. Can you reach the area that you responded to from the YMCA
that is located in Gaston County?
A. Yes.
Q. And how do you reach it from that particular YMCA in Mount
Holly?
A. If you turn onto YMCA drive off of 273 you go down the it’s
the main entrance and the road to the subdivision cuts off
to the left and you follow that road all the way around and it
was a dirt road at the time that went up into that area.
Q. So you pull into the YMCA in Mount Holly?
A. Yes.
Q. And this particular area, is this an exit off Interstate 85?
A. Yes. It is exit 27.
Q. And when you pull into the YMCA do you go all the way into
the YMCA?
A. No. Just right before you go into the main parking lot the
road that goes into the subdivision will be off to your left.
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Q. And that particular road, you indicated that it leads to a
subdivision. You mentioned something about a dirt road. Was it
paved at the time?
A. No. The main road into the subdivision was paved but when
you got near the river it turned into a dirt road.
Q. And is that how you arrived over at this particular area?
A. Yes.
Q. And was that after you received or retrieved a search
warrant?
A. Yes.
Q. Now when you went down and you took a left toward that
subdivision did you eventually end up at kind of a dirt road
area?
A. Yes.
Q. Okay, and did you have to drive on that dirt road?
A. Yes.
Q. And did you eventually come to a stop?
A. Yes.
Q. What did you do next?
A. I got out of my vehicle and walked down to where I saw
people standing near the crime scene.
Q. Okay, and when you first got out of your vehicle did you
approach like an embankment area?
A. Yes. It was a utility right of way with high grass and
wooded, grown over woods, and I could see tire tracks leading
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through the brush and grass.

Q. So is that one of the first things you observed when you got
out of your car?
A. Yes.
Q. And these tire tracks, did they start up where the dirt road
was?
A. Just off the dirt road, yes.
Q. And they led to what?
A. The car.
Q. And when you say the car, what car?
A.
The victim’s car.
MR. PHILLIPS: Objection.
THE COURT: Sustained.
Q. And the car that these particular tire tracks led to, where
was it located?
A. I’m sorry?
Q. The car that these tire tracks led to, where was it located?
A. It was in the grassy area, the right of way, utility right
of way.
Q. So was it at the bottom of the embankment?
A. Yes.
Q. And at that point did you go down to the bottom portion of
the embankment where this car was located?
A. Yes.
Q. And that particular area right there on your way down, is
Addis - Direct/Hamlin - 95

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that grassy?

A. Yes.
Q. Is there any sort of beach or anything right there?
A. No.
Q. Now where this particular car was located, what, if
anything, else did you observe at that point?
A. Just the car was resting on a stump just right at the
river’s edge and just the tire tracks and grass mashed down
around the car.
Q. Now did you actually walk like on foot down towards this
car?
A. Yes.
Q. Were you able to do that without much trouble?
A. Yes.
Q. And the vehicle that you just described on the stump, was it
in the water?
A. Just the front right tire was - it was kind of sitting in a
mud puddle right next to the river but it hadn’t reached all the
way into the river yet.
Q. This particular area where this car was located, you talked
about it being overgrown. Was there any sort of clearing or
anything there?
A. Just the trees were cut away for the right of way, just like
a utility, a sewer right of way.
Q. Okay.
Addis - Direct/Hamlin - 96

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A. So it was just high grass and brush, but the trees had been
cleared from that area for the right of way.
Q. Now at the point when you got down the embankment and you
saw the motor vehicle or where it was resting, what, if anything,
else did you observe near that vehicle?
A. Just other officers.
Q. Now you arrived later than other officers, correct?
A. Yes.
Q. And at that point had the body been removed from the scene?
A. Yes.
Q. So you were fairly late in arriving at the scene?
A. Yes. Several hours after.
Q. And while at the scene were you involved in securing that
particular car that was located on the stump?
A. Yes.
Q. Tell the jury about that.
A. We had the tow truck driver secure it with chains to the tow
points on the vehicle, pulled it up the embankment, and Detective
Terry and I sealed it with evidence tape around every seam and
every door, the hood, the trunk, and with red evidence tape that
breaks if it is tampered with.
Q. Where was the car taken?
A. It was taken to Belmont Police Department and placed into a
secured garage.
Q. How was the car removed from the scene after it was taped up
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and sealed?

A. It was put onto the back of a rollback wrecker and
transported.
Q. Basically towed out?
A. Yes.
Q. Okay. Now were you with this car as it traveled down to
Belmont to the secured garage you just described?
A. Yes.
Q. Okay, and where were you?
A. I was following it in my vehicle.
Q. Now in the days following this, the days following the
discovery of Ms. Irina Yarmolenko, what other involvement did you
have in the investigation?
A. Mainly helped do a neighborhood canvas, went into the
neighborhood that was nearest the crime scene and asked - knocked
on doors and asked people if they had seen anything and collected
still pictures from the State Employees Credit Union over by UNC
Charlotte that showed the victim in the bank and collected the
surveillance from the Goodwill and the YMCA.
Q. So basically you were just backtracking, trying to find out
the whereabouts of Ms. Irina Yarmolenko prior to her death?
A. Yes.
Q. Now drawing your attention back to this particular area
where you saw that car that was towed out, is there a fishing
spot near where Ms. Yarmolenko’s body was found and that car was
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located?

A. Yes.
th

Q. Now prior to May 5 of 2008 had you ever been to that
fishing spot?
A. No.
th

Q. Now prior to May 5 of 2008 were you familiar with that
fishing spot?
A. No.
Q. Let me direct your attention to May 15, 2008, about a week
and a half later. Did you speak to someone by the name of Mark
Carver on that day?
A. Yes.
Q. Where did you speak with him?
A. At his home.
Q. Why did you go speak with him?
A. I learned that he was fishing near where Ms. Yarmolenko was
found.
Q. And do you see Mr. Mark Carver in the courtroom?
A. Yes.
Q. Will you identify him for the jury?
A. He is sitting right there in the blue plaid shirt.
Q. Now when you went to go speak to Mr. Carver you indicated
you went to his residence?
A. Yes.
Q. And while you were interviewing how did he act?
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A. He - I told him why I was there and -
Q. What did you tell him?
A. That we were - just wanted to talk to him because we learned
he was fishing near the area where Ms. Yarmolenko was found and
just wanted to talk to him about that.
Q. Okay, and how did he appear?
A. He - like uninterested. He didn’t want to talk about that
girl. He wanted to talk about everything else.
Q. Did he eventually provide you with a statement as to his
whereabouts on May 5th of 2008?
A. Yes.
Q. And where did Mr. Carver say he was the day that the victim
was found deceased at the river?
A. At the fishing spot near the crime scene.
Q. Did he tell you who he was fishing with that day?
A. Yes. His cousin, Neal Cassada.
Q. Now while speaking with Mr. Carver you indicated he gave a
statement. Did you write down what Mr. Carver told you?
A. Yes.
Q. And did you write down just the parts that dealt with this
day of May 5th of 2008?
A. Yes.
Q. And when you wrote down that statement for him, did you
review it with him?
A. Yes.
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Q. And do you know if he was able to read and write at the
time?
A. If I can remember correctly, I think he said he couldn’t do
either well so I read the statement back to him and then I let
him sign it.
Q. At that point did he sign it?
A.
Yes.
MS. HAMLIN: Your Honor, may I approach?
THE COURT: Yes.
Q. Let me show you what’s been marked State’s Exhibit 12 for
your review. Just take your time and look over it. Do you
recognize State’s Exhibit Number 12?
A. Yes.
Q. What is it?
A. It is the statement, a copy of the statement, that I took
from Mr. Carver.
Q. And that statement is in your handwriting?
A. Yes.
Q. And that is the statement that you wrote after speaking or
while speaking to Mr. Carver?
A. Yes.
Q. Is this the statement that you then reviewed with Mr. Carver
and had him review and sign?
A. Yes.
Q. And did Mr. Carver sign that statement?
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A. Yes.
Q. And that particular State’s Exhibit 12 is a true and
accurate copy of the statement that Mr. Carver provided to you?
A.
Yes.
MS. HAMLIN: I offer in evidence State’s Exhibit 12.
THE COURT: Very well. Let it be received.
Q. Drawing your attention to that exhibit, did the defendant
tell you what time he arrived at the Catawba River that day?
A. Yes.
Q. What did he say?
A. Around 11:30 A.M.
Q. Now when he told you that did you question him further about
that or ask him to go into any specifics?
A. No.
Q. And why is that?
A. Because I was just - the investigation was in the initial
stages and nobody was a suspect yet so I didn’t have any reason
to further investigate him. I just took the time he told me as
the time that he meant he was down there.
Q. So he wasn’t even a suspect at that point?
A. No.
Q. You were just questioning him because he was in the near
area where the victim was found dead?
A. Right.
Q. Let me just bring your attention to that statement. Did Mr.
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Carver tell you that he saw anyone else at the river that day
other than himself and his cousin Neal Cassada?

A. He said that the only people he saw down there - well, he
initially said that him and his cousin Neal were the only people
down there but he did see - later see two people, a man and a
woman on jet skis, and a black man fishing.
Q. And did he tell you anything else about those two people
on the jet skis?
A. Yes. He said he heard the lady on the jet ski say the F
word Q.
And was that conversation back and forth or did he tell you
much detail about that?
A. He didn’t go into detail about it. He just heard the man on
the jet ski tell the black man in a boat to call 911.
MS. HAMLIN: Actually I am going to go ahead and ask
that those particular - that exhibit be published. We do have
copies for all the jurors, Your Honor.

THE COURT: All right.
(Whereupon, the exhibit was published to the jury.)

Q. Detective Addis, drawing your attention back to May of 2008,
was there a worn path that led from this fishing spot that Mr.
Carver has referred to and the location where Irina Yarmolenko’s
body was located?
A. Yes.
Q. Have you actually traveled that particular path between
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those two spots?

A. Yes.
Q. And how long did it take you to travel between those two
spots?
A. No more than two or three minutes.
Q. And that was on foot?
A. Yes.
th

Q. Now at some point later after May 5 of 2008 did you return
to that fishing spot where Mark Carver indicated he was and also
to the spot where the victim’s body had been located?
A. Yes.
Q. Did other detectives go with you from the Mount Holly Police
Department?
A. Yes.
Q. Was Detective Terry one of those people?
A. Yes.
Q. Now when you returned to that area were the conditions of
the river at that point in those two spots substantially similar
as to the conditions back on May 5th of 2008?
A.
Yes.
MR. PHILLIPS: Objection. When was it?
THE COURT: Sustained.
Q. When did you return? How many times?
A.
Multiple.
MR. PHILLIPS: Objection. Well, I withdraw the
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objection to that answer.
THE COURT: Very well.

Q. And when did you return back over there and walk that
particular foot path?
A. It would have been in the days following the discovery of
Ms. Yarmolenko.
Q. And you indicated that when you returned to the area those
two spots were substantially similar?
MR. PHILLIPS: Objection to the leading.
THE COURT: Overruled.

Q. What was your answer?
A. Yes.
Q. So was it still overgrown and things of that nature?
A. Yes.
Q. Now while standing at that particular fishing spot, are you
able to hear noises from the location where the victim’s body was
discovered?
MR. PHILLIPS: Objection.

Q.
If you know.
THE COURT: Overruled.
A. Yes.
Q. And how do you know that?
A. Because Detective Terry and I went down there and talking in
a normal voice could hear from each other’s location and tossed
small rocks into the water from each location and you could hear
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it easily.
MR. PHILLIPS: Objection and move to strike.
THE COURT: Overruled. Denied.

Q. After your involvement with that, shortly after your
interview with Mr. Carver which I believe was May 15th of 2008,
did your involvement become pretty limited in this case?
A. Yes.
Q. Why was that?
A. I am in the North Carolina Army National Guard and I was
deployed to Iraq.
Q. So your involvement was in a lot of the early stages of this
case?
A. Yes.
Q.
Nothing further.
THE COURT: Examination.
MR. PHILLIPS: Thank you, Your Honor.
CROSS EXAMINATION BY MR. PHILLIPS:

Q. Detective Addis, do you have a picture, a photograph, of a
path you are talking about?
A. No.
Q. Why not?
A. I didn’t take any pictures.
Q. Okay. You didn’t think it was important to take a
photograph of the path?
A. Well, I wasn’t responsible for taking any of the pictures.
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Q. Okay. When you applied for the search warrant for the
vehicle, what time did you apply for that search warrant?
A. I don’t know the exact time.
Q. Was it ten hours later?
A. No, it was a couple hours later.
Q. And did you develop a crime scene log while you were there?
A. No, I didn’t.
Q. Who is responsible for that?
A. Normally the patrol supervisor.
Q. And who was that in this case?
A. That would be Sergeant Skidmore.
Q. Did he develop a crime scene log, if you know?
A. I don’t know.
Q. And a crime scene log, that’s where you put in there who
goes into the crime scene?
A. Right.
Q. Is that right?
A. Yes.
Q. Were you placed in the crime scene log, if you know?
A. No, I wasn’t placed in one.
Q. How many people had access to the vehicle before you got the
search warrant?
A. I don’t know.
Q. How many people touched the vehicle before you got the
search warrant?
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A. I don’t know.
Q. Were there other officers near the vehicle?
A. Yes.
Q. Who?
A. When I got there the only ones that were there were Sergeant
Walls, Detective Terry and Sergeant Tindall.
Q. How about Sergeant Skidmore?
A. He had already left.
Q. Did he have access to the vehicle, Sergeant Skidmore?
A. Yes.
Q. Did Detective Walls or Sergeant Walls have access to the
vehicle?
A. Yes.
Q. Did Detective Terry have access to the vehicle?
A. Yes.
Q. So it was taped up after - after you arrived with the search
warrant, right?
A. Yes.
Q. And you served the search warrant on the vehicle?
A. Yes.
Q. Is that correct? Okay, and you don’t know how many people
touched that vehicle before you served the search warrant?
A. I don’t because I wasn’t there.
Q. Okay. Now you took a statement from Mr. Carver but you took
it ten days later, didn’t you?
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A. Yes.
Q. Why did you wait so long?
A. Because it took that long to learn that he was down there
fishing.
Q. And did you record the statement that you took from Mr.
Carver?
A. No.
Q. Do you recall what he was wearing when you talked to him?
A. No.
Q. And you wrote down the statement, didn’t you?
A. I did.
Q. And you pretty much - you just paraphrased what he told you,
didn’t you?
A. No, I wrote down exactly what he told me as he was telling
it.
Q. All right, and when you asked him what time he got down to
the Catawba River fishing he said around 11:30?
A. Yes.
Q. And did he say exactly what time it was? 11:31? 11:32?
A. He said around 11:30.
Q. All right. Did you ask him what that meant?
A. No. I wrote down what he said.
Q. Okay, and when he told you about seeing a man and a woman on
jet skis and a person in a boat, did you ask him did it mean over
on the bank or in the river?
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A. No, I didn’t. He just said he saw them on the jet skis.
Q. Okay, and you also asked him, or he gave you the statement,
that the police told him there was a dead body nearby. Did he
tell you what time that was?
A. No.
Q. And according to this statement everything happened at
11:30 A.M.; is that right?
A. According to what he said.
Q. Okay. According to what you understood at that time; is
that right?
A. What he told me, yes.
Q. After you spoke with Mr. Carver did you arrest him?
A. No.
Q.
Why didn’t you arrest him then?
MS. HAMLIN: Objection.
THE COURT: Overruled.
A. I didn’t have any reason to.
Q. Did you take his fingerprints?
A. No.
Q. When you arrived on the scene with your search warrant, did
you see any rescue personnel?
A. They had already left.
Q. So they also had been on the scene; is that right?
A. Yes.
Q. Do you recall who they were?
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A. No. I had just heard that they were there.
Q. Okay, and they had access to the vehicle, also?
A. Yes.
Q. How many were there?
A. You would have to ask somebody else that was there when they
were.

MR. PHILLIPS: No further questions, Your Honor.

MS. HAMLIN: Nothing further, Your Honor.

THE COURT: Thank you, sir. You can step down.

MS. HAMLIN: We would ask that Mr. Addis be excused from
his subpoena.

THE COURT: Any objection?

MR. PHILLIPS: Yes, sir, Your Honor.

THE COURT: There is an objection?

MR. PHILLIPS: No. No objection. Sorry.

THE COURT: Thank you, sir.

MS. HAMLIN: Thank you, Your Honor.

WILLIAM TERRY, being first duly sworn, testified as follows
during DIRECT EXAMINATION BY MS. HAMLIN:

Q. Please state your full name for the record.
A. It is Detective William D. Terry.
Q. Are you employed?
A. Yes, I am.
Q. Where do you work?
A. I work for the Mount Holly Police Department.
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Q. How long have you worked for the Mount Holly Police
Department?
A. Six and a half years.
Q. And what is your specific position with the Mount Holly
Police Department?
A. Currently I am assigned to the criminal investigations
division.
Q. What type of things do you do with them?
A. I am a detective so I investigate crimes such as financial
identity theft, breaking and enterings, all the way up to
homicide.
Q. Now were you employed with the Mount Holly Police Department
in the criminal investigation unit back on May 5th of 2008?
A. Yes, ma’am, I was.
Q. I am going to direct your attention to early that afternoon
on that particular day. Did you respond to a homicide call?
A. Yes, ma’am, I did.
Q. Do you recall what time that particular call came in?
A. It was approximately 1:20 P.M.
Q. At that point did you respond to the call?
A. Yes, ma’am, I did.
Q. And when you did who was with you?
A. Sergeant Walls.
Q. Now from the call that you received of this homicide, was it
clear exactly where the homicide scene was?
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A. No, ma’am, it wasn’t. We just had received information that
it was near the Catawba River or on the Catawba River.
Q. So where exactly at that point did you respond?
A. Initially we responded to the Riverfront subdivision. When
we got there some construction workers told us that it was on
down the river. So we went down to the dead end of Caldwell
Drive at that point and exited our vehicles there.
Q. At that point were you on foot?
A. Yes.
Q. And were you at that point walking in what type of area?
A. At that time it was a dirt area with a trail leading towards
the river, the dead end there.
Q. Was this like a wooded area, a grassy area?
A. It was a wooded area with a trail cut between - whenever we
got out at the dead end of Caldwell Drive that’s a wooded area.
It has a dirt trail going into the woods leading towards the
river.
Q. So after walking through the woods for a while did you
eventually reach the river?
A. Yes, ma’am, I did.
Q. When you eventually reached the river, what, if anything,
did you observe?
A. Whenever I exited the woods, Sergeant Walls had already
gotten a little bit ahead of me. Whenever I exited the woods
immediately to my right I saw a white Jeep Wrangler and Corporal
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Ellison was at that point talking to a white male who was later
identified as John Beatty and then down behind his Jeep was a
white S10 Blazer that had been backed in and there was a white
male down there. It appeared that he was loading fishing rods
into his Jeep there or his S10 Blazer. That white male was later
identified as Mark Bradley Carver.

Q. Now at that point did you speak to Mr. Mark Carver?
A. No, ma’am, I didn’t.
Q. So at this point were you still trying to find this location
of where this body was?
A. Yes, ma’am.
Q. Approximately what time was it that you saw Mr. Carver at
that point?
A. That was approximately 2:15 P.M.
Q. And describe this particular area where you saw Mr. Carver
loading fishing equipment into his SUV.
A. It’s behind the YMCA. It is an isolated area near the
river. It has like a small little beach area where it appears it
has been opened up for a fishing spot but it is surrounded by
woods. The surrounding area is overgrown, things like that.
Q. Now this particular fishing area where Mr. Carver was
located, is there direct access to it, if you know, by a paved
road?
A. Not directly by a paved road, no, ma’am.
th

Q. Prior to May 5 of 2008, had you ever been to that fishing
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spot?

A. No, ma’am.
Q. Were you familiar with it?
A. No, ma’am, I wasn’t.
Q. And from there did you eventually go to the area where the
body was located?
A. Yes, ma’am, I did.
Q. Now at that point did you actually get into a car and drive
from that particular area where Mr. Carver was located to the
area where you discovered or saw the body?
A. I got into a vehicle. I didn’t drive. Mr. Beatty had
offered us a ride because he had come by that area where all the
other officers were and he offered a ride to us because he said
he knew where all the other MR.
RATCHFORD: Objection.
THE COURT: Sustained.

Q. So you received a ride?
A. Yes.
Q. And Officer Walls also received a ride?
A. Yes, ma’am, he did.
Q. Okay, and eventually where were you taken?
A. Right around the corner from the fishing spot to an area
where all the other officers were.
Q. And was there crime scene tape and stuff like that around
that area at that point?
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A. Yes, ma’am.
Q. Now how long did it take to drive from that fishing spot
where Mr. Carver was located to the area where the crime scene
tape and other officers were located?
A. Driving, approximately thirty seconds.
Q. Now when you first arrived at this area where the other
officers were located, was it at the top of an embankment?
A. Yes, ma’am.
Q. Okay, and at that point what, if anything, did you first
observe or what drew your attention?
A. What drew my attention to the area was - it was an overgrown
area. It had a lot of brush and high grass and things like that.
It was some sort of utility right of way and the grass had been
pushed down and it looked like a vehicle had gone down that down
through that right of way and approaching it a little
further I was able to see the back end of a blue car and a body
there.
Q. Now did you eventually go down that embankment towards where
the body and the car were located?
A. Yes, ma’am, I did.
Q. And did you later learn the identification of the young
girl, the body, at the bottom of the embankment?
A. Yes, ma’am, I did.
Q. And who was she identified as?
A. Irina S. Yarmolenko.
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Q. Now describe the area down at the bottom of that embankment
where Ms. Yarmolenko’s body was located.
A. Ms. Yarmolenko’s body was located at the edge of the Catawba
River. It was a large embankment leading down to this area. It
was an overgrown area and it was, like I said, a utility right of
way and, like I said, it was overgrown. There was some high
grass and underbrush and things like that down there and it was it
wasn’t a beach area. It appeared to be an area where nobody
should be.
Q. So there was no open area or anything like right there?
A. No, ma’am.
Q. Okay, and this car, you said at first you saw the back end
of the car. As you walked down and you were next to the victim
and near the scene, were you able to see the entire car at that
point?
A. Yes, ma’am, I was.
Q. And how did this car appear to you?
A. At first it didn’t look there was any damage but once I got
around to the front of it I was able to see that it had struck a
stump that was hidden under some underbrush there at the edge of
the river and there was some front damage done to the vehicle
that I was able to notice once I got down there.
Q. Was the car in the water?
A. No, ma’am, it wasn’t.
Q. Were all the doors closed, open, on the car? Describe that
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when you arrived.

A. Whenever I arrived the two driver’s side doors were open.
Q. Now Ms. Yarmolenko’s body, how close was it to the car?
A. It would be hard to say. If you don’t mind I would like Q.
Okay. If you could show us.
A. Yes. The car was here and her body was laying directly
beside it, approximately - I would say approximately no more than
five feet away, about right here, just a little bit in front of
the open front door, the driver’s door.
Q. And did you have the opportunity to observe the victim?
A. Yes, ma’am, I did.
Q. And how was she laying?
A. She was laying on her back with three things wrapped around
her neck. Her body was wet. Her clothing was wet. It appeared
that her hair was wet, also.
Q. And was her head closest to the river or how was that? How
was her location?
A. No, ma’am. Her head was back towards the embankment. Her
feet were near the river underneath some brush. Upon closer
inspection she was actually holding some of that brush in her
hand.
Q. Was the scene photographed that day?
A. Yes, ma’am.
Q. And have you reviewed the photographs of the scene that day?
A. Yes, ma’am.
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MS. HAMLIN: May I approach the witness, Your Honor?
THE COURT: Yes.

Q. Detective Terry, I am going to show you what’s been marked
State’s Exhibit 13 and I am also going to show you what’s been
marked State’s Exhibit 14 through 36.
A. Okay.
Q. Just take your time and look through those items.
A. (Examining exhibits)
Q. Detective Terry, have you had the opportunity to look at
State’s Exhibit 13 and State Exhibits 14 through 36?
A. Yes, ma’am, I have.
Q. What is State’s Exhibit 14 through 36? As a collection what
is that?
A. Those are hard copies of the crime scene from May 5th.
Q. So those are hard copies of photographs from the scene on
May 5th of 2008?
A. Yes, ma’am.
Q. Okay, and you recognize all those items?
A. Yes, ma’am.
Q. And each one of those, State’s Exhibit 14 through 36, are
they all true and accurate depictions of what you saw back on the
crime scene on May 5th of 2008?
A. Yes, ma’am.
Q. And will they help illustrate your testimony?
A. Yes, ma’am, they will.
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MS. HAMLIN: Move to admit those items, 14 through 36,
into evidence.

MR. RATCHFORD: No objection.

THE COURT: Very well. Let them be received.

Q. Were these photographs also saved onto a CD?
A. Yes, ma’am, they were.
Q. And have you reviewed the photographs on that CD?
A. Yes, ma’am.
Q. Drawing your attention to State’s Exhibit 13, have you had
the opportunity to look at that particular item?
A. Yes, ma’am.
Q. What is that?
A. This is the disk of the same photographs that are here.
Q. That particular CD is the disc that contains the photographs
of the scene back on May 5th of 2008?
A. Yes, ma’am.
Q. And that particular disc, does it contain all the
photographs that you just observed, numbers 14 through 36,
State’s Exhibits?
A. Yes, ma’am.
Q. And how do you recognize that that is that particular CD?
A. My initials are on it.
Q. And is it also labeled with the fact that it is the scene
photos?
A. Yes.
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Q. And did the photos that are contained on that CD accurately
depict the way the scene appeared back on May 5, 2008?
A. Yes, ma’am.
Q. Will they help illustrate your testimony?
A.
Yes, ma’am, they will.
MS. HAMLIN: Move to admit the CD, State’s Exhibit 13.
THE COURT: Let it be received.
MS. HAMLIN: Has Your Honor had an opportunity to review
those photographs?
THE COURT: Yes.
MS. HAMLIN: May I ask the witness to step down?
THE COURT: Very well.
(Witness steps down to stand in front of the jury.)

Q. Now, Detective Terry, do you recognize this particular
photograph?
A. Yes, ma’am.
Q. Describe what we are looking at here.
A. This is the high grass area at the top of the embankment.
Here are the tire tracks that I described earlier leading towards
the river to the edge of the embankment and there is the yellow
crime scene tape that I described earlier.
Q. Now these tire tracks right here, is this at the top of the
embankment or at the bottom?
A. Yes, ma’am, they are at the top.
Q. And then from there they go downwards?
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A. Yes, ma’am.
Q. And is that the first thing that you observed when you came
upon this particular scene?
A. It was one of the first things. The other was the crime
scene tape.
Q. Okay. What are we looking at here?
A. This is just a different view of the same tire tracks and a
little bit closer to the edge of the embankment there.
Q. Okay. A little bit closer to the crime scene tape?
A. Yes, ma’am. This is the Catawba River back here in the
back.
Q. Now when you came into the scene and you parked your car,
were you right at the top of where these tire tracks started?
A. Mr. Beatty let me off just right there on the trail. This
was directly off the trail, you know, just right over from the
side of the trail. It’s not too far off.
Q. What is that out in the distance in the water?
A. It appears to be a kayaker.
Q. And what are we looking at here?
A. This is the back of the blue four door Saturn. This is
taken from the top of the embankment looking down towards the
river. There you can see the victim’s vehicle there.
Q. Okay, and what are we looking at here?
A. This is the passenger side view of the vehicle. Here you
can see a little bit of the front end damage done to the hood
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there and some of the detectives in the back. That’s Sergeant
Tindall. That’s me there. That’s one of the firemen there and a
couple of the other rescue guys there on the boat.

Q. What are we observing here?
A. This is the front passenger side quarter panel of the
vehicle, the front fender there. As you can see, the front tire
is a little bit in the water there. It is more of in like a
muddy area at the edge of the water and you can’t see the stump
from this angle very well but you can see that the car is resting
on something there. That’s a lot of underbrush and once the car
was pulled away you could see the stump underneath.
Q. Now were you present when the car was pulled away?
A. Yes, ma’am.
Q. Okay, and could you see that stump that was there that the
car was resting on?
A. Yes, ma’am.
Q. What was around that stump?
A. Just some overgrown brush and things like that. It was
hidden by all this overgrown -
Q. What are we looking at there?
A. This is the back driver’s side quarter panel. This is the
back driver’s side passenger door.
Q. And what are those items that we see in that back seat?
A. Those are pillows.
Q. On the car there seems to be some like markings there. What
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is that?

A. It appears to be smeared mud.
Q. What are we looking at here?
A. This is the area right below the pillar there. The
passenger door, the back driver’s side passenger door, is here
and this is just an area there a little bit closer up of that mud
smear.
Q. What are we looking at here?
A. This is the driver’s side. This is the driver’s door here.
As you can see, the front end damage is a little bit more evident
from this side. This is the overgrown area with the stump hidden
underneath all that brush there and this is a white sheet there
that is covering the body.
Q. Okay. So in this picture the body is covered?
A. Yes, ma’am.
Q. But when you arrived at the scene was the body covered?
A. No, ma’am, it wasn’t.
Q. And was that - does that accurately depict where the body
appeared next to the car?
A. Yes, ma’am.
Q. What are we looking at here? What view is this?
A. This is from the river. Sergeant Walls actually went out
onto the river in a boat and took pictures back from the river
back into towards the vehicle. This is the front end of the car
here. Both driver’s side doors are open. Here is the overgrown
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area there and still from this angle you can’t see that stump
there and this is the white sheet covering the body there.

Q. Now when you arrived at the scene did you indicate that both
doors were open?
A. Yes.
Q. Sometime during the processing of this car and things of
that nature, who - actually who is this guy over here that looks
like he is writing something out?
A. That is a crime scene investigator from the Gaston County
Police Department.
Q. So crime scene came out?
A. Yes.
Q. And they looked into the car and started processing things?
A. Yes.
Q. So at some point during that was the car door closed?
A.
I believe so, yes.
MR. PHILLIPS: Objection.
THE COURT: Sustained.
Q. At some point during the investigation was the car door
closed?
A. Yes.
Q. What are we looking at here?
A. This is another view just a little bit further down actually
towards the area where Mark Carver was fishing that day. It’s
back - it is back towards the vehicle. Here you can see the
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overgrown area again and some more of the front end damage there
and it is just another angle of the vehicle in the crime scene.

Q. Now this particular - is that the tape that we saw earlier
as you were looking down?
A. Yes, ma’am, it is, and that gentleman there is Sergeant
Skidmore.
Q. What are we looking at here?
A. This is the body of Irina Yarmolenko uncovered. The sheet
was taken off.
Q. And this particular item that we are looking at here in the
corner, what is that?
A. That is the front driver’s door there.
Q. And I see a shadow here.
A. Yes.
Q. And is that of the person taking the photograph?
A. I would say so, yes. I mean it is consistent with where he
was standing while taking the picture, and based on the time of
day the sun would have been coming from that direction so the
shadow would have been there.
Q. Now earlier in your testimony you indicated that the
victim’s clothing was wet.
A. Yes.
Q. Are you able to see that in this particular photograph?
A. Yes, ma’am.
Q. Okay. Can you show the areas where you recall the victim’s
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clothing being wet?

A. If you notice here, there is an area that appears to be dry
there. It kind of does a V shape right here on her chest. The
rest of that area is wet there. From here down is wet and some
areas on her shirt as well and her hair also appears to be wet.
Q. And so this wet spot, you see it on there?
A. Yes, ma’am. You can see it a little bit closer. This is
just a closer view. Like I said, the area on top there is dry
and from here down all the way around appears to be wet.
Q. And actually it kind of goes into this crease a little bit?
A. Yes, ma’am.
Q. And along this side here?
A. Yes, ma’am.
Q. Now the way her body is located, her legs, you indicated
earlier, were closer towards the river?
A. Yes, ma’am.
Q. So this car door right here that we are looking at, that is
the front driver’s side door?
A. Yes, ma’am.
Q. And just beyond that is the river?
A. Yes, ma’am.
Q. What is her feet in right there?
A. Her feet are underneath some brush there, some of that
overgrown brush that was there that I was describing earlier.
Her feet are actually underneath it.
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Q. What are we looking at here?
A. This is a different angle of the same - the same photograph.
It is just a different angle, taken from a different angle. As
you can see, the wetness here still and her hair is wet here and
these are the three items that were wrapped around her neck, just
a little bit closer view. Also a closer view of the three items.
Here you can see the wetness on the top of her shoulder here and
from here down. It is a blue ribbon, a drawstring from this
hoodie, and a blue bungee cord wrapped around her neck.
Q. What are we looking at here?
A. This is a close up of her feet. As you can see, this foot
here is underneath the brush and the vines and stuff there. This
foot is also Q.
What is that?
A. That is also a close up view of her left foot underneath the
vines there.
Q. What is this?
A. This is a picture of the back seat, a close up picture of a
white bag with flowers on it. This blue ribbon here appears to
match the blue ribbon that was wrapped around her neck.
Q. Now where did you find this bag?
A. It was underneath these pillows in the back seat.
Q. Okay. So that other picture we saw with those pinkish
pillows A.
Yes, ma’am.
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Q. - it was underneath that?
A. Yes, ma’am.
Q. Did you have to pick the pillows up a little bit to look at
it?
A. Yes, ma’am.
Q. And that bag would have been on the back seat driver’s side;
is that right?
A. Back seat driver’s side, yes, ma’am.
Q. What are we looking at here?
A. This is a close up picture of where it appears the ribbon
that was tied around her neck was ripped from this bag.
Q. What are we looking at here?
A. These are a close up of her eyes there showing some
hemorrhaging in the eyelids there.
MR. PHILLIPS: Objection.
THE COURT: Sustained.

Q. Just how her eyes appeared on the day, May 5th of 2008?
A. Yes, ma’am.
Q. What are we looking at here?
A. This is a close up of the three things wrapped around her
neck, the drawstring here, the blue ribbon here and the blue
bungee cord here.
Q. What are we looking at here?
A. This is a picture of her hand. You can see that she was
grasping onto one of the vines there.
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Q. What are we looking at here?
A. This is a picture of Ms. Yarmolenko. As you can see here,
that was her hand that was grasping the vine there and just for
evidentiary purposes we took the picture of her, what she was
wearing underneath.
Q. And is this how she appeared when you came down to the crime
scene but with her shirt down?
A. Yes.
Q. Is that just more pictures of her underclothing?
A. Yes.
Q. What are we looking at here?
A. This is Ms. Yarmolenko’s back. As you can see here, there
is some mud and dirt and things like that on her back area here
and the back of her arms.
Q. Is it the back where the bungee cord was?
A. Yes, ma’am. You can see it is here hooked here in the back.
Q. Thank you. You can retake your seat.
A.
(Witness returns to stand)
MS. HAMLIN: Your Honor, if we could have just a moment
to go ahead and move the TV screen.
THE COURT: Very well.

Q. You talked about some items that were located inside the
car.
A. Yes, ma’am.
Q. Did you - in addition to looking at the photographs, did you
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actually have the opportunity to look inside the victim’s car?

A. Yes, ma’am, I did.
Q. Now when I say look, did you rummage through or did you just
look and things of that nature?
A. Some things were moved but I wouldn’t call it rummaged.
Just to - at that point in time we had not identified her so we
were looking for things that might help us with the crime and
also some identification.
Q. And while you were looking through there you talked about
this flower bag?
A. Yes, ma’am.
Q. And what, if anything, did you indicate drew your attention
to that flowered bag?
A. The ribbon had been ripped off and appeared to match the
ribbon wrapped around Ms. Yarmolenko’s neck. It drew my
attention because of that reason.
Q. And eventually at some later point was this flower - I am
going to describe it as a flower bag with the ribbon torn. Was
it eventually collected?
A.
Yes, ma’am.
MS. HAMLIN: Your Honor, may I approach?
THE COURT: All right.
Q. I am going to approach with State’s Exhibit 37. Do you
recognize that? Do you have gloves up there?
A. Yes, ma’am, I do. This is a Mount Holly evidence bag. It
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has our case number on it. It is marked item number 34 and a
description of the item. It is a white bag with blue ribbon
straps and one is missing. It has red, blue and yellow flowers
on it. It contains two screwdrivers and an adjustable wrench and
that’s in my handwriting.

Q. And so were you present when this particular bag was
collected?
A. Yes, ma’am.
Q. Okay. Were you the actual officer that placed it in that
Mount Holly bag?
A. I sealed the bag. I don’t recall whether I placed it in
there or if CSI Workman placed it in there.
Q. But you were present when it was placed in there?
A. Yes, ma’am.
Q. And then you ended up sealing it up?
A. Yes, ma’am.
Q. Okay, and then where did you take it from there?
A. After all the evidence was collected from the scene that day
it was secured in the Mount Holly Police Department.
Q. And you recognize that particular bag and the contents in it
based on the markings and your initials and things of that
nature?
A. Yes, ma’am.
Q. Do you have a knife on you?
A. Yes, ma’am, I do.
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Q. I would ask at this point that you open up State’s Exhibit
37. Try your hardest not to open it up on a seam that has been
initialed or sealed.
A. Yes, ma’am.
Q. I am actually going to mark this particular item that is
inside there.
A. Okay.
Q. I am marking this State’s Exhibit 38. Do you recognize
that?
A. Yes, ma’am.
Q. What is that?
A. This is the white flowered bag with the ribbon missing from
this side that I was speaking of earlier.
Q. And is that the particular white flowered bag that was
located or found in the back seat of the victim’s car underneath
those peach colored pillows?
A. Yes, ma’am.
Q. Okay. Is that particular bag in substantially the same
condition as when you first observed it and then it was collected
and placed in the custody of the Mount Holly Police Department?
A.
Yes, ma’am.
MS. HAMLIN: I offer into evidence State’s Exhibit 38.
THE COURT: Let it be received.
Q. Now in addition to looking inside of the car because you
indicated you were looking for identification, things of that
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nature, trying to figure out what happened here, did you have the
opportunity to look inside the trunk of the victim’s vehicle?

A. Yes, ma’am.
Q. And what, if anything, caught your attention about that?
A. The trunk was very full. It had things like a bike rack and
some other things like that inside, a tarp, but one thing that
did catch my attention was an old style film camera and in
looking at it, it had two exposures showing on the counter and
also a bungee cord that appeared to be the same type of bungee
cord that was wrapped around Ms. Yarmolenko’s neck.
Q. And so it was a pretty full trunk?
A. Yes, ma’am.
Q. Now you talked about this old style film camera and I guess
you describe it like that because we tend to use digital now?
A. Yes, ma’am. It was a 35 millimeter camera.
Q. And this camera, did it require like film to be placed in
it and then actually be developed?
A. Yes, ma’am.
Q. Now at some point did you learn whether or not there was any
film in that camera?
A. Yes, ma’am, I did.
Q. And was there any film in that camera?
A. No, ma’am.
Q. But you talked about something about exposures or two or
something. What are you talking about there?
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A. There were two exposures showing on the counter there and
it appeared that two pictures were taken.
Q. But there was no film?
A. No, ma’am.
Q. And did you collect this particular camera?
A. Yes, ma’am.
Q. And was it then secured and sealed and taken back to the
Mount Holly Police Department?
A. Yes, ma’am.
Q. You also talked about finding some bungee cords in the
trunk, and how did you describe them?
A. They appeared to be the same type of bungee cords that were
wrapped around Ms. Yarmolenko’s neck.
Q. Did you also collect that bungee cord?
A. Yes, ma’am.
Q. And when I say bungee cord, I am referring to the one that
was located in the trunk.
A. Yes, ma’am.
Q. When you collected that item, was it sealed up and then
taken to the Mount Holly Police Department?
A.
Yes, ma’am, it was.
MS. HAMLIN: May I approach the witness?
THE COURT: All right.
Q. I show you what I have marked as State’s Exhibit 39 for
your review if you could look at this. Do you recognize it?
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A. Yes, ma’am.
Q. What is State’s Exhibit 39?
A. This is item number 3. In this case the description would be
a bungee cord with hair that came from the trunk. It has our
case number on it and it is packaged in one of our evidence bags.
Q. And were you present when this item was collected?
A. I don’t recall being present when this item was collected.
It was actually collected by Detective Addis and sealed.
Q. And was this the particular item that you saw in the back of
the trunk? Have you reviewed it and looked inside?
A. Yes, ma’am.
Q. And would it be easier for you to have scissors?
A. Maybe.
Q. It is marked with all of numbers and things correlating back
to the item that - I guess when you collect an item you actually
assign it a number and then you keep that in a property log?
A. That’s correct.
Q. Okay. So the number that is located on this item is item
number three?
A. Okay, and that item matches back to the bungee cord that
was collected from the trunk?
A. Yes, ma’am.
Q. And at some point you were able to look at this item?
A. Yes, ma’am.
Q. Can you open up the bag, please?
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A. Yes.
Q. I am going to mark the contents of this bag as State’s
Exhibit 40. Do you recognize that?
A. Yes, ma’am.
Q. Okay. Tell the jury what that is.
A. This is a bungee cord with the same type of hooks that was
found in the trunk, the same type of hooks that has the bungee
cord wrapped around Ms. Yarmolenko’s neck.
Q. And that particular bungee cord that was found in the trunk,
is that bungee cord in substantially the same condition as when
you first observed it in the trunk of the victim’s car?
A.
Yes, ma’am.
MS. HAMLIN: I offer into evidence State’s Exhibit 40.
THE COURT: Let it be received.
Q. Now you talked a little bit about this camera. Was that
also assigned a Mount Holly number?
A. Yes, ma’am.
Q. Okay. What Mount Holly number was assigned to that camera?
A. Excuse me for a second. Can I Q.
Yes, take your time.
A. That was item number five.
Q. It was item number five. Your Honor, may I approach the
witness?
THE COURT: Very well.

Q. I am going to show you what has been marked State’s Exhibit
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41. Do you recognize State’s Exhibit 41?
A. Yes, ma’am. This is an envelope containing the camera.
This is the way I received it back except for I opened it on June
21, 2010 for further examination.
Q. Okay, and were you the particular person that actually
sealed up this camera and eventually sent it over to the State
Bureau of Investigation?
A. Yes.
Q. And this envelope on the top is what you actually received
back from the State Bureau of Investigation?
A. That’s correct.
Q. Okay, and at some point after that you had opened it up,
looked at it, reviewed it, things of that nature?
A. Yes, ma’am.
Q. Okay. So what’s inside State’s Exhibit 41?
A. This is item number five which is the old style film camera
that I was describing earlier.
Q. The one that was found in the trunk?
A. Yes.
Q. Okay. Can you attempt to, as best you can, without going
over anyone else’s markings or signatures and things of that
nature attempt to open that up?
A. (Witness complies with request)
Q. I am going to go ahead and label the package that is
within that package State’s Exhibit 42. Do you recognize that?
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A. Yes, ma’am.
Q. Okay. What is State’s Exhibit 42?
A. This is a Mount Holly evidence bag. It has Detective Addis’
handwriting on it, our case number, item number five. A
description of the item is Canon EX with two exposures.
Q. And this is that same camera that you have described earlier
but this is actually now in your evidence bag the one that was
sent to the State Bureau of Investigation for testing purposes?
A. That’s correct.
Q. Okay. If you could just take the time to open up State’s
Exhibit 42 without A.
(Witness complies with request)
Q. I will mark this as Exhibit 43. Do you recognize State’s
Exhibit 43?
A. Yes, ma’am.
Q. Okay. What is that?
A. This is the old style film camera that I described that we
received from the - or that we collected from the trunk.
Q. Substantially in the same condition as when it was collected
from the trunk back on May 5 or shortly after May 5th th of 2008?
A. Other than the exposures. It is no longer showing two
because it was tested by the lab.
Q. So other than that it is in substantially the same
condition?
A. Yes, ma’am.
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MS. HAMLIN: I offer into evidence State’s Exhibit 43.
THE COURT: All right. Let it be received.

Q. Since May of 2008 have you been down to the area where the
victim was located?
A. Yes, ma’am.
Q. Have you also been back to the area where Mark Carver was
fishing on that day?
A. Yes, ma’am.
Q. Now you have heard - you heard Detective Addis testify?
A. Yes, I did.
Q. Were you involved in his testimony about hearing voices and
things of that nature from those two spots?
A. Yes, ma’am, I was.
Q. Tell us your part in that.
A.
I stood at the top of the embankment where Ms. Yarmolenko MR.
RATCHFORD: I am going to object as not relevant.
THE COURT: Overruled.
A. I stood at the top of the embankment where I described
earlier, down the hill where Ms. Yarmolenko was found. I stood
at the top of the hill and I was able to talk to Detective Addis
who was in the spot where Mark Carver was.
MR. RATCHFORD: Objection.
THE COURT: Overruled.

A. I was able to talk in a normal voice with Detective Addis
who was standing in the area where Mark Carver was fishing on May
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5.
Q. Did you throw a rock into the water?
A. Yes, ma’am, I did.
Q.
As far as you know, was Detective Addis able to hear that?
MR. RATCHFORD: Objection.
THE COURT: Sustained.
Q. Now at some point was a Jeep or some sort of motor vehicle
brought back down there and the door was shut?
A. Yes, ma’am.
Q. Where was the Jeep located when it was brought down to this
area?
A. It was parked at the top of the embankment where I described
I was standing earlier. I walked to the area where Mark Carver
was fishing.
MR. RATCHFORD: Objection.
THE COURT: Sustained.

Q. Earlier in your testimony you indicated that on May 5, 2008
you saw Mr. Mark Carver down at a fishing spot putting fishing
equipment in his truck; is that correct?
A. Yes, ma’am, it is.
Q. So did you walk then down - back to the time we are talking
about now - back to that area where you personally saw Mr. Mark
Carver?
A. Yes, ma’am.
Q. And what happened at that point?
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A. I stood there and I was able to hear a car door being
slammed at the top of the embankment.
MR. RATCHFORD: Objection.
THE COURT: Overruled.

Q. Now back on May 5 of 2008 was there a worn path between
these two spots, and when I say two spots I am talking about the
area at the top of the embankment where the victim was located
down below and the spot where you personally saw Mr. Mark Carver
back on May 5th of 2008.
A. Yes, ma’am, there was.
Q. Now this worn path, is it a path that can be driven?
A. Yes.
Q. Is it also a path that can be walked?
A. Yes, ma’am.
Q. Is it paved?
A. No, ma’am, it is not.
Q. Now this path, it leads from let’s describe it as the
fishing area where you saw Mark Carver to the top of the
embankment where those tire tracks started?
A. Yes, ma’am.
Q. Okay. Down that grassy area?
A. Yes, ma’am.
Q. And have you ever walked that particular path?
A. Yes, ma’am.
Q. And how long did it take you to walk between those two
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spots?

A. Approximately a minute.
Q. And earlier in your testimony you indicated you had driven
between these two spots. You described it as right around the
corner.
A. I didn’t drive but I rode with someone.
Q. You rode. I’m sorry.
A. Yes, ma’am, it is just right around the corner. There is a
small wooded area. It almost comes to a point in between that
wooded area. A trail is cut through leading from the fishing
spot around the corner to the top of the embankment there.
Q. And when you rode that area did you also ride that worn
path?
A. Yes, ma’am.
Q. Okay, and that, you indicated earlier in your testimony,
took I think thirty seconds?
A. Approximately, yes, ma’am.
th

Q. Now drawing your attention to May 6 of 2008, did you attend
the autopsy of Ms. Yarmolenko?
A. Yes, ma’am.
Q. And where was that autopsy conducted?
A. The Gaston Memorial Hospital.
Q. Do you recall who all was present during that autopsy?
A. Yes, ma’am. It was me. I was present, Dr. Nguyen, Carol
Pinckard with the medical examiner’s office, crime scene
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investigator Workman with the Gaston County police, and a couple
of the aides that were assisting Dr. Nguyen in the autopsy.

Q. And were items collected from the autopsy?
A. Yes, ma’am.
Q. From the victim’s body?
A. Yes, ma’am.
Q. Were photographs also taken during the autopsy?
A. Yes, ma’am.
Q. Now you talked a little bit about when we talked about the
pictures the drawstring that was wrapped around the victim’s
neck.
A. Yes, ma’am.
Q. And you have indicated in testimony that it appeared that
it came from where?
A. Her hoodie that she was wearing.
Q. And was that particular drawstring collected from the
autopsy?
A. Yes, ma’am.
Q. And was it then handed over to you and sealed?
A. Yes, ma’am.
Q. And how do you seal those types of items? In a bag or
something of that nature?
A. It depends on what type of item it is. That particular
item I believe was packaged in a bag but any type of item is
placed into an evidence bag depending on what it is and then it
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is sealed. The seams are sealed and the tape is initialed that
it is sealed with.

Q. And you actually sealed up this particular item, this
drawstring or cord, however you want to describe it, that had
been wrapped around her neck. You were the one that sealed it.
Did you eventually take it back to the Mount Holly Police
Department?
A. Yes, ma’am.
Q. And did you secure it at that point?
A. Yes, ma’am.
Q. Now we talked a little bit about the blue ribbon that
appeared to have ripped from that purse. Was that collected from
the autopsy?
A. Yes, ma’am.
Q. Was it collected from her neck, also?
A. Yes, ma’am.
Q. Was that provided to you?
A. Yes, ma’am.
Q. Were you the officer that sealed that up into some sort of
evidence container and took it back to the Mount Holly Police
Department for safekeeping?
A. I took it back. I don’t recall if I sealed it but either I
-I was present while it was being sealed but I don’t recall at
this moment whether I sealed it or if Workman sealed it.
Q. Okay, but that particular item, the blue ribbon, was sealed?
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A. Yes, ma’am.
Q. Into some sort of evidence container, whether it be a bag or
box or something to that effect?
A. That’s correct.
Q. And then was that item then taken back to the Mount Holly
Police Department?
A. Yes, ma’am.
Q. And was it secured?
A. Yes, ma’am.
Q. And then we talk about the third thing wrapped around her
neck was what? It was a bungee cord.
A. That’s correct.
Q. Was that collected from the autopsy?
A. Yes, ma’am.
Q. And that particular bungee cord also collected, sealed, put
into an evidence container and brought back to the Mount Holly
Police Department for secure safekeeping?
A. Yes, ma’am.
Q. Now in addition to those particular items taken from the
autopsy, was there a blood sample taken?
A. Yes, ma’am.
Q. In fact, there were two blood samples taken?
A. That’s correct.
Q. And those particular items were two blood samples. They
came from whom? The victim?
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A. That’s correct.
Q. And they were provided to you?
A. Yes, ma’am.
Q. And were those then sealed up as we have described earlier
and put into protected sort of evidence bags and then taken back
to the Mount Holly Police Department?
A. Yes, ma’am.
THE COURT: At this time we are going to take our
morning recess, members of the jury. Remember you are not to
discuss the case or have any contact with any participant. Don’t
let your minds be made up about anything connected with the case.
We will resume at twenty after, sheriff, by the clock on the back
wall.

(Whereupon, the Court took a morning recess from 11:05
to 11:20 A.M. and thereafter reconvened with the defendant and
all counsel present.)

MS. HAMLIN: Your Honor, prior to bringing them out it
was brought to the State’s attention by Mr. Ratchford that there
was a picture on the CD that was not - a hard copy was not made
and I actually had that picture in hand and it just somehow ended
up staying in the folder. We can remedy that by when the jury
comes back in just going ahead and approaching with that one
photograph.

THE COURT: What number is that photo or will it be?
MS. HAMLIN: It will be number 44.

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THE COURT: All right. Anything further?

MS. HAMLIN: No, Your Honor.

MR. RATCHFORD: No, sir.

THE COURT: Sheriff, if you will return the jury,
please.

(Whereupon, the jury returned to the courtroom.)

THE COURT: What says the State?

MS. HAMLIN: Thank you, Your Honor.

Q. Detective Terry, it looks like one of the photographs from
earlier ended up sticking in the file. If I may approach the
witness?
THE COURT: Very well.

Q. I show you what’s been marked as State’s Exhibit 44. Take a
look at that. Do you recognize State’s Exhibit 44?
A. Yes, ma’am.
Q. And is State’s Exhibit 44 a photograph that was taken of the
victim, Irina Yarmolenko, back on May 5, 2008 at the crime scene?
A. Yes, ma’am.
Q. Now this particular photograph, it was also included in the
CD that was shown to the jurors?
A. Yes, ma’am, it was.
Q. And that particular photograph accurately depicts the way
the victim appeared back on May 5th of 2008?
A.
Yes, ma’am.
MS. HAMLIN: I offer into evidence State’s Exhibit 44.
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THE COURT: Let it be received.

MS. HAMLIN: And at this point it has already been
published through the video, Your Honor.

THE COURT: All right.

Q. Right before the break we were talking about several items
during the autopsy that were collected from the autopsy. Were
photographs taken during the autopsy?
A.
Yes, ma’am.
MS. HAMLIN: May I approach with State’s Exhibit 45 and
46?
THE COURT: Yes.
MR. RATCHFORD: Can we approach, Your Honor?
THE COURT: Yes.
(Conference at the bench with counsel)

Q. Detective Terry, I am going to show you what’s been marked
State’s Exhibit 45 if you will just take a moment and look at
that. Do you recognize State’s Exhibit 45?
A. Yes, ma’am.
Q. And what is it?
A. This is a picture taken at the autopsy. It is a closeup of
the ribbon and the drawstring.
Q. And that particular photograph accurately depicts the way
the victim appeared and the ligatures around her neck back on May
6th of 2008 at the autopsy?
A. Yes, ma’am. The bungee cord at that point had already been
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taken off.

MS. HAMLIN: I offer into evidence State’s Exhibit 45.

THE COURT: It will be received.

MS. HAMLIN: Your Honor, we were actually going to
publish - we would ask that they be published simply by passing
around rather than the big screen. I would ask for State’s
Exhibit 45 to be published at this point.

THE COURT: Very well. Members of the jury, you are to
examine any exhibit that you are handed without comment and
individually.

(Whereupon, State’s Exhibit 45 was published to the
jury.)

Q. I show you what’s marked State’s Exhibit 46 if you could
look at that. Do you recognize State’s Exhibit 46?
A. Yes, ma’am.
Q. What is that?
A. That is a picture of Ms. Yarmolenko at the autopsy.
Q. Accurately depict the way she appeared at the autopsy?
A. Yes.
Q. That particular photograph of Ms. Yarmolenko is more of
a photograph that is a little less close up of the ligatures?
A.
That’s correct.
MS. HAMLIN: Offer into evidence State’s Exhibit 46.
THE COURT: Let it be received.
MS. HAMLIN: I ask that it be published.
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THE COURT: Very well.
(Whereupon, Exhibit 46 was published to the jury.)

Q. Now earlier in your testimony you talked about going to the
autopsy and taking some items into custody from the autopsy.
A. Yes, ma’am.
Q. One of those items was the drawstring that was wrapped
around the victim’s neck?
A. Yes, ma’am.
Q. The ribbon that was wrapped around the victim’s neck?
A. Yes, ma’am.
Q. And the bungee cord that was wrapped around the victim’s
neck?
A.
That’s correct.
MS. HAMLIN: May I approach the witness?
THE COURT: Yes.
Q. I am showing you what’s been marked State’s Exhibit 47. Do
you recognize that?
A. Yes, ma’am.
Q. What is that?
A. This is a box containing a North Carolina SBI swabbing from
the two ends of the ribbon from that blue bag or from the white
flowered bag, the blue bungee cord from the victim’s neck, a
black drawstring from the victim’s neck and a blue ribbon from
the victim’s neck.
Q. So the three ligatures that were wrapped around her neck
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along with a swabbing from those actual ribbons?

A. It’s in this box.
Q. In that box?
A. Yes, ma’am.
Q. That box, did you actually package it in this particular
box, those items in there?
A. Yes, ma’am, I did.
Q. If you could just take the time and attempt to open up that
box.
A. I may not be able to open it without cutting the seal unless
I Q.
You can probably open it up cutting it on the side, maybe.
A. (Witness complies with request)
Q. I hand you what has been marked State’s Exhibit 48, 49 and
50. Do you recognize State’s Exhibits 48, 49 and 50?
A. Yes, ma’am.
Q. I am going to draw your attention to State’s Exhibit 48. Do
you recognize that?
A. Yes, ma’am. This is packaging with our case number on the
front, the date and time it was sealed, and item number 50 which
is the blue ribbon, and my name and call number are on the front
there, and it was sealed by me at the top.
Q. And if you could just take the time and attempt to open up
State’s Exhibit 48.
A. (Witness complies with request)
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Q. What is State’s Exhibit 48?
A. This is the bag that I packaged it in initially. It was
sent to the SBI lab for testing and this is the way they sent it
back.
Q. And that particular ribbon, is that the ribbon you spoke of
as collecting from the autopsy from the victim’s neck?
A. Yes, ma’am.
Q. And other than testing purposes when it was sent to the
State Bureau of Investigation, is it in substantially the same
condition as when it was collected from the autopsy?
A.
Other than those purposes, yes, ma’am, it is the same.
MS. HAMLIN: I offer into evidence State’s Exhibit 48
as the accumulation of that envelope and the contents thereof.
THE COURT: Let it be received.

Q. I am going to draw your attention to State’s Exhibit 49.
Do you have that in front of you?
A. Yes, ma’am.
Q. What is State’s Exhibit 49?
A. This is the packaging with our case number on the front,
date and time it was sealed, item number 51 which in this case is
the drawstring and my name and call number on the bottom. I
sealed it at the top there, my initials.
Q. And State’s Exhibit 49, you said it is - you talked about
what Mount Holly number it is but what does it contain?
A. It contains a drawstring.
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Q. The drawstring that was taken from the victim’s neck during
the autopsy?
A. Yes, ma’am.
Q. Can you open that package?
A. (Witness complies with request)
Q. Do you recognize the contents in State’s Exhibit 49?
A. Yes, ma’am.
Q. And what is State’s Exhibit 49?
A. This is the original bag that I sealed it in to send it to
the SBI lab for testing. This is the way they sent it back and
this is the black drawstring that was removed from her neck.
Q. During the autopsy?
A. Yes, ma’am.
Q. And other than for testing purposes, is that particular
drawstring in substantially the same condition as when it was
collected from the autopsy back on May 6, 2008?
A. Yes, ma’am.
MS. HAMLIN: I offer in evidence State’s Exhibit 49 as
the envelope encompassing the drawstring and ask that it be
admitted.

THE COURT: Let it be received.

Q. I draw your attention to State’s Exhibit 50. Do you
recognize that?
A. Yes, ma’am. This is a Gaston County evidence bag. It is
marked our item number 52. It has our case number on it, date
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and time it was collected, who it was collected by, which in this
case was CSI Workman. I was present during the time that he
collected this item.

Q. And can you open up State’s Exhibit 50?
A. (Witness complies with request)
Q. Do you recognize what is inside State’s Exhibit 50?
A. Yes, ma’am.
Q. And what is that?
A. This is the blue bungee cord that was removed from Ms.
Yarmolenko’s neck at the autopsy.
Q. And that particular bungee cord that was removed from her
neck, is it in substantially the same condition as it was when it
was collected from the autopsy back on May 6, 2008?
A. Yes, ma’am.
MS. HAMLIN: I offer into evidence State’s Exhibit 50,
which is the envelope and the contents of that being the bungee
cord.

THE COURT: Let it be received.

Q. Now you also talked about in your earlier testimony before
the break that some blood samples were taken from the victim
during the autopsy.
A. Yes, ma’am.
Q. Okay, and they were given to you?
A.
Yes, ma’am, they were.
MS. HAMLIN: May I approach, Your Honor?
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THE COURT: Yes.

Q. I show you what I have marked as State’s Exhibit 51 and 52
and I will remove some of these items. Drawing your attention to
State’s Exhibit 51, do you recognize that?
A. Yes, ma’am.
Q. What is State’s Exhibit 51?
A. This is an evidence bag that I packaged Ms. Yarmolenko’s
blood card and her blood sample in. They are individually bagged
inside of this outer bag here.
Q. Okay, and can you actually see the bag that contains her
blood sample within that plastic bag?
A. Yes.
Q. Okay, and which color is that?
A. The one that actually contains her blood sample is this
white envelope here.
Q. Okay. Can you go ahead and open that up?
A. (Witness complies with request)
Q. I am going to go ahead and approach with State’s Exhibit 53.
Do you recognize that?
A. Yes, ma’am.
Q. Okay, and what is State’s Exhibit 53?
A. This is a white envelope containing the victim’s name, date
collected, and collected by in this case the victim’s name is
Irina S. Yarmolenko, collected by Dr. C. Nguyen.
Q. Dr. Nguyen was the doctor that did the autopsy?
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A. Yes.
Q. And that was the blood sample that he provided to you?
A. Yes.
Q. Okay. Who put it in that white envelope?
A. He did.
Q. And was this in your presence?
A.
Yes, it was.
MS. HAMLIN: I offer into evidence State’s Exhibit 53.
THE COURT: Let it be received.
MS. HAMLIN: May I approach?
THE COURT: Yes.
Q. I am going to show you what has been marked State’s Exhibit
52.
A. Okay.
Q. Do you recognize State’s Exhibit 52?
A. Yes, ma’am.
Q. And State’s Exhibit 52, does it contain a second blood
sample of the victim, Irina Yarmolenko?
A. Yes, ma’am.
Q. And that particular envelope that it is in, do you recognize
that envelope?
A. This is the envelope that I received back from the State
Bureau of Investigation, the laboratory.
Q. Okay, that you received back from them after they had used
it for processing, DNA purposes?
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A. Yes, ma’am.
Q. And if you could go ahead and open up State’s Exhibit 52.
A. (Witness complies with request)
Q. Have you pulled out the contents in State’s Exhibit 52?
A. Yes, ma’am.
Q. Okay. I am going to mark this State’s Exhibit 54. Mr.
Ratchford, would you like to see it?
MR. RATCHFORD: Yes, ma’am.

Q. Do you recognize State’s Exhibit 54?
A. Yes, ma’am.
Q. And what is State’s Exhibit 54?
A. This is a sexual assault kit that was collected during the
autopsy on Ms. Yarmolenko.
Q. And the sexual assault kit included a blood sample?
A. Yes.
Q. And that entire sexual assault kit was then provided to you
and packaged up?
A. It was packaged by Ms. Pinckard but given to me, yes.
Q. Given to you and then from there for safekeeping purposes
where did you take it?
A. I took it to the Mount Holly Police Department for storage.
Q. And that box that contains that sexual assault kit including
the blood sample in substantially the same condition as when you
received it from Carol Pinckard at the autopsy?
A. Other than markings made by the lab, yes.
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MS. HAMLIN: I offer into evidence State’s Exhibit 54.
THE COURT: Let it be received.

Q. Now we talked a little bit about these items and we talked
about how they were sealed and then they were eventually stored.
Were they stored at the Mount Holly Police Department?
A. Yes, ma’am.
Q. Okay, and what was eventually done with the items that were
collected from the autopsy, the blood samples, the bungee cord,
the drawstring and the ribbon? What was eventually done with
those items?
A. These items were submitted to the North Carolina SBI lab in
Raleigh for testing.
Q. Now when was that done? If you need time to look A.
Yes, ma’am, please. Those items were submitted on May 13,
2008.
Q. And how were they submitted? Were they hand delivered?
A. Yes, ma’am.
Q. And upon submitting those items to the North Carolina State
Bureau of Investigation, did you make some sort of request?
A. Yes, ma’am.
Q. And what was that request?
A. I asked that all these items be tested for molecular
genetics or DNA.
Q. Comparing at this point only the victim’s DNA, the victim’s
blood, to those three ligatures?
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A. That’s correct.
Q. Now let’s talk about the car that was located at the river
next to the victim. You arrived on the scene. Was the victim
still present?
A. Yes, ma’am.
Q. And you talked about her being close to the car. Were you
present when the car was removed from the scene?
A. Yes, ma’am.
Q. And was this particular car secured before it was removed
from the scene?
A. Yes, ma’am.
Q. How was it secured?
A. It was towed to the top of the embankment. At the top of
the embankment the doors were locked and all of the seams were
sealed with red evidence tape that would break if tampered with.
Q. And where was it towed to?
A. It was towed to the Belmont Police Department.
Q. Is that because they have a secured like garage or bay?
A. Yes, ma’am. We don’t have a secure bay at the Mount Holly
Police Department so we took it to Belmont who does. They have a
secure bay that is almost like a garage. It has a roll down door
and it is able to be locked and this garage is within a fenced in
area.
Q. And that fenced in area is also locked?
A. Yes, ma’am.
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Q. Now after the car was then towed to the Belmont Police
Department, did it eventually have to be processed for DNA?
A. Yes, ma’am.
Q. Now were you present when the vehicle was towed to the
Belmont Police Department?
A. Yes, ma’am. I rode with the tow truck driver to the
Belmont Police Department.
Q. Now we’ve talked a little bit about the car was eventually
processed for DNA.
A. That’s correct.
Q. And during those occasions were you present?
A. Yes, ma’am.
Q. Now prior to that it was processed for fingerprints?
A. Yes, ma’am.
Q. Okay, but you weren’t present during that?
A. Only for a short time. We were doing some follow up - or
during the initial investigation. So I came there later but for
the entire thing, no, ma’am, I wasn’t there.
Q. Another one of the detectives with the Mount Holly Police
Department was present during that fingerprint A.
Yes, ma’am. Detective Addis.
Q. And that was done by crime scene officer Workman?
A. That is correct.
Q. Now on that occasion where the DNA was being processed
from that car you indicated you were present. Who else was there
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with you? Was there a crime scene officer?

A. Going back to your last question, if it was Workman or not,
I don’t recall if it was Workman or Propst but I can check my
notes to be a hundred percent.
Q. Okay. Well, let’s just - we can talk about fingerprints in
a little bit. Let’s go ahead and move on to the DNA. You were
the officer that was present when the car was swabbed for DNA
purposes?
A. Yes, ma’am.
Q. Okay, and who was present with you? Was there a crime scene
officer there with you?
A. Yes.
Q. Okay. Now who was that?
A. That was CSI Workman.
Q. Okay. Now does he work in Mount Holly?
A. No, ma’am. He works for Gaston County police.
Q. Okay, and so you asked for the assistance of the Gaston
County police?
A. Yes, ma’am.
Q. Just for the purposes of swabbing the car, fingerprints,
things of that nature?
A. Yes, ma’am. We don’t have a crime scene officer in Mount
Holly so we enlisted their help or we requested their help.
Q. Now when this car was swabbed or processed for DNA, was it
at that Belmont bay, that garage area, that secured garage area?
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A. Yes, ma’am, it was.
Q. And you had a key to this particular garage?
A. I did not have a key. We had to get a key to the garage
from the chief of police in Belmont. He was able to provide us
entry to that garage when we needed it.
Q. Okay. So when you approached the car with Officer Workman,
it was locked in that garage?
A. Yes.
Q. Okay, and at that point did the car have to be pulled out in
order to process it?
A. Yes, ma’am.
Q. Okay. So this garage is kind of a smaller area?
A. Yes, ma’am. There are other items that Belmont has secured
there as well in that bay. Things like - I don’t recall exactly
what but there are other things in that bay there.
Q. Now you indicated Officer Workman with the Gaston County
police collected these swabs and you were present. Do you know
what date that was?
A. Yes, ma’am. Excuse me for a second. That was on July 10,
2008.
Q. And when you were present during this, did Detective Workman
-did he package those swabs and did he seal them and then he
provided them to you?
A. Yes, ma’am.
Q. And you were present while all this was taking place?
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A. That’s correct.
Q. Now you are not an evidence collector so you are not that
familiar with the process?
A. No, ma’am.
Q. After Officer Workman or Detective Workman collected these
swabs from the car, did you then get those from him and then
package them back up?
A. Yes, ma’am.
Q. So he provided them to you in what?
A. He provided those to me in a large bag. Each swab that he
did, which he did several swabs that day, he would swab it with
what appeared to be a wet swab and then - or a dry swab or vice
versa. I don’t recall which way he did it. But then he placed
each one of those swabs into a small box that had - he had
written on it where he took it from.
Q. Okay, and then those boxes were provided to you?
A. Yes, ma’am.
Q. Okay, and then did you put those individual boxes that had
those swabs from those areas into another envelope?
A. Yes, ma’am, into a small mailing envelope because the State
Bureau of Investigation lab would not accept just the small box.
It needs to be packaged.
Q. So Detective Workman would take a swab from an area, box it
up. He sealed it?
A. If I recall correctly, yes. He would box it up, write on it
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what it was, and then he placed it separately into a bag, into a
large bag, and then he gave that entire bag to me with its
contents.

Q. Did you then take those particular swabbings back to the
Mount Holly Police Department and place them in a secured area?
A. Yes, ma’am.
Q. Do you recall how many swabs Detective Workman actually took
from the car, how many different areas?
A. I count twenty-two.
Q. And those were twenty-two different areas that he took from
the car swabbings?
A. There was one area that he swabbed twice, I believe, but the
others were all different places.
MS. HAMLIN: Your Honor, may I approach?
THE COURT: Yes.

Q. I show you what has been marked as State’s Exhibit 55 and
I ask if you recognize that.
A. Yes, ma’am, I do.
Q. What is State’s Exhibit 55?
A. This is the way that I received it back from the lab. It
has been opened a couple more times since we got it back for
further testing, but it is in substantially the same condition
that it was when I received it back.
Q. Okay, and when you say when you received it back from the
lab, what is that? What is inside that? Is it labeled?
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A. Yes, it is. These are all the swabbings from Ms.
Yarmolenko’s vehicle.
Q. Those twenty-two swabbings that you referred to earlier?
A. Yes, ma’am.
Q. And you received it back in that particular envelope back
from the State Bureau of Investigation?
A. Yes, ma’am.
Q. Okay. If you could go ahead the best you can and try to
attempt to open up that envelope. I will mark this as State’s
Exhibit 56. Do you recognize that?
A. Yes, ma’am.
Q. And what is State’s Exhibit 56?
A. This is a bag containing items 60 through 81. It has our
OCA number on it or our case number and it has the SBI’s case
number on it.
Q. Now you said State’s Exhibit 56 contains item numbers 60
through 81?
A. That’s correct.
Q. Okay, and those are Mount Holly numbers?
A. Yes, it is.
Q. Okay, and those are your evidence numbers when you collect
items?
A. Yes.
Q. Now Mount Holly numbers 60 through 81, do those correspond
with the twenty-two samples, swabbings, that were taken from the
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car?

A. Yes, ma’am.
Q. And so within this particular envelope, is that one of the
ones that it was packaged up in by you?
A. It was not packaged by me. This one was not, no.
Q. Okay. So was that packaged by the State Bureau of
Investigation back to you?
A. It has Ms. Winningham’s signature from the lab, yes.
Q. Okay, and these items 60 through 81, are these the - that
envelope, does that contain the twenty-two swabs taken from the
car?
A. Yes.
Q. Okay. I would ask that you open that up the best you can,
State’s Exhibit 56.
A. (Witness complies with request)
Q. If you just want to lay them out one at a time along right
here for Mr. Ratchford and myself to look at.
A. (Witness complies with request)
Q. I show you what’s been marked State’s Exhibit 57, State’s
Exhibit 58, State’s Exhibit 59, 60 and 61, and if you can just
take your time and look at those items.
A. Okay.
Q. Now do you have State’s Exhibit 57 in front of you?
A. Yes, ma’am.
Q. Do you recognize State’s Exhibit 57?
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A. Yes, ma’am.
Q. What is State’s Exhibit 57?
A. This is the white envelope that I described earlier that I
packaged the swabs that CSI Workman handed to me. They were
sealed on July 10, 2008. This item, particular one, is our item
61. It has our case number on it. These are swabs from the
pillar above the driver’s side rear door.
Q. And is that particular item 57 in substantially the same
condition as when you packaged it back on July 10, 2008?
A. Other than it has been opened here by what appears to be
Ms. Winningham from the lab.
Q. So other than purposes for testing for DNA?
A.
That’s correct.
MS. HAMLIN: I offer into evidence State’s Exhibit 57.
THE COURT: It will be received.
Q. I draw your attention to State’s Exhibit 58. Do you
recognize that?
A. Yes, ma’am.
Q. And what is State’s Exhibit 58?
A. This is our item number 62 which are swabs from the pillar
above the driver’s side rear door.
Q. And is that the particular envelope that you placed those
swabbings in that came to you in that box from CSI - I guess you
call him - Workman?
A. Yes, ma’am.
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Q. Substantially the same condition as when you sent them off
to the State Bureau of Investigation?
A. Except for it being opened, yes. It is substantially the
same other than that.
MS. HAMLIN: I offer into evidence State’s Exhibit 58.
THE COURT: Let it be received.

Q. I draw your attention to State’s Exhibit 59. Do you
recognize that?
A. Yes, ma’am.
Q. What is State’s Exhibit 59?
A. This is Mount Holly’s item number 69 which are swabs of the
front passenger door arm rest. It is in the same packaging and
it is the same other than being opened at the lab.
Q. So substantially the same condition as when you packaged it
and then sent it to the State Bureau of Investigation?
A. Yes, ma’am.
Q. Do you recognize that?
A. Yes, ma’am.
Q. What is that?
A. This is our item number 74 which are swabs of the seat belt
button on the passenger side back seat. This is the packaging,
the envelope that I packaged the box of swabs in. It has our
case number and date on it.
Q. And that particular envelope contained those swabs
substantially in the same condition as the last time you observed
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it when it was sent to the State Bureau of Investigation for
processing?

A.
Other than processing, yes.
MS. HAMLIN: I offer into evidence State’s Exhibit 60.
THE COURT: Let it be received.
Q. I draw your attention to State’s Exhibit 61. Do you
recognize that?
A. Yes, ma’am.
Q. What is that?
A. This is our item number 68. It has our case number on it,
the date, my name, as did all the other ones have my name on it.
This is, like I said, item number 68 which are swabs of the
interior side front passenger door glass.
Q. And that State’s Exhibit 61 that you are looking at right
now substantially the same condition as when you sealed it up and
sent it to the State Bureau of Investigation for processing?
A.
Yes, it is, other than being opened for testing.
MS. HAMLIN: I offer into evidence State’s Exhibit 61.
THE COURT: Let it be received.
Q. Let’s go ahead and draw your attention back to State’s
Exhibit 57. Do you have that in front of you?
A. Yes, ma’am.
Q. Okay, and just to be on the safe side - Mr. Ratchford,
would you like to come up here? As best you can in some part
that is not marked, if you could go ahead and open that up.
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A. (Witness complies with request)
Q. You don’t have to pull it out but if you could just look
inside.
A. Okay.
Q. Okay, and what is inside that envelope?
A. There is a small white box in there with the date and time
and it says “Pillar above driver’s side rear door” on it.
Q. And inside that envelope in State’s Exhibit 57 that is the
box that was provided to you with the swabbings from the car from
CSI Workman?
A. Yes, sir.
Q. In that pillar part of the car?
A. Yes, ma’am.
Q. And go ahead and draw your attention to State’s Exhibit 58,
if you could just open that up the best you can.
A. (Witness complies with request)
Q. Do you recognize the contents of State’s Exhibit 58?
A. Yes, ma’am. This is the white box that I received from
crime scene investigator Workman. The box says “Pillar above
driver’s side rear door, 7-10-08 at 11:20.”
Q. Okay. I draw your attention to State’s Exhibit 59, if you
could just go ahead and do the same thing and make sure you
recognize the contents of that.
A. (Witness complies with request) Yes, ma’am.
Q. And what is that?
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A. This is the white box that I received from crime scene
investigator Workman. It says “7-10-2008, 11:42, front passenger
door arm rest.”
Q. State’s Exhibit 60 which is right here.
A. (Witness opening package)
Q. Do you recognize State’s Exhibit 60?
A. Yes, ma’am.
Q. What is that?
A. This is the white box that I received from crime scene
investigator Workman, 7-10-2008, 11:54, “Seat belt button,
passenger side back seat.”
Q. And that is also the same thing as what’s indicated on the
front of the envelope?
A. Yes, ma’am.
Q. And that’s for all four of these that you have looked at so
far; is that correct?
A. Yes, ma’am.
Q. Okay. State’s Exhibit 61.
A. (Witness opening package)
Q. Are you able to see the contents inside?
A. Yes, ma’am.
Q. Do you recognize that?
A. That is the small white box that I received from crime
scene investigator Workman, 7-10-2008, 11:40, interior side front
passenger door glass.
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Q. And that is also the same that is identified on the front
of the envelope that you sealed up?
A. Yes, ma’am.
Q. Now what was eventually done with those swabs that were
collected from the car by Officer Workman and then given to you?
Were they then given to you to secure?
A. Yes.
Q. Okay. You have indicated you have placed them in those
envelopes and that was because you had to send them to the State
Bureau of Investigation?
A. That’s correct.
Q. Were they submitted to the State Bureau of Investigation?
A. Yes, they were.
Q. When was that?
A. October 24, 2008.
Q. Now at some point later after these swabs were collected
from the car, did you have contact with both Mark Carver and Neal
Cassada?
A. Yes, I did.
Q. And did you at that point collect buccal swabs from Mark
Carver and Neal Cassada?
A. Yes, ma’am.
Q. Okay, and tell me what you do when you collect a buccal swab
from an individual.
A. You take a small Q-tip, probably about that long
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(indicating) and just rub it gently on the inside of the cheek.
There is two in each package, one for the left side and one for
the right side.

Q. And that’s to gain like skin cells from inside their cheek?
A. I believe so, yes.
Q. And so you are not like an expert on anything about DNA.
You are just at this point just collecting the items to send to
the SBI; is that correct?
A. That’s correct. It is an easy process. I don’t have any
expertise in it but it comes with instructions.
Q. It’s like a kit?
A. Yes, ma’am.
Q. Okay. So you indicated that you got these buccal swabs from
Mr. Carver and Mr. Cassada back on October 6, 2008?
th

A. October 6 , yes, ma’am.
Q. And you were actually the officer that did that?
A. Yes, ma’am.
Q. Okay. Now when this was done was it done while they were
together in the same room or was it done while they were
separated?
A. They were separated.
Q. Okay, and where was it done?
A. At the Mount Holly Police Department.
Q. And while you were speaking with Mr. Mark Carver, did you
tell him why you were there or why he was there?
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A. I actually did not speak with him that day except for just
to gain his consent to have a buccal swab.
Q. Okay. So you did not actually have like an interview with
him?
A. No, ma’am.
Q. But you spoke to him about the fact that you were going to
be taking - putting a Q-tip in his mouth and getting a buccal
swab?
A. Yes, ma’am. I just described the process to him and told
him that it was non-invasive, it wasn’t going to hurt, things
like that.
Q. Okay, and he consented to this?
A. Yes, ma’am.
Q. Okay, and at that point did you then take a Q-tip and go
into his mouth like you just described?
A. Yes, ma’am, both of them.
Q. Do you recall who you did it to first?
A. No, ma’am, I don’t recall.
Q. Okay, but you did it to them while they were separated?
A. Yes, ma’am.
Q. Okay, and you did one at a time?
A. Yes, ma’am.
Q. Okay. So after - when you received it from, say, Mark
Carver, what did you do with that buccal swab at that point?
A. It was placed into the same type of small white box,
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labeled, and placed into a white envelope like the ones that I the
other ones were packaged in.

Q. Okay, and did you - and before you took the second swab from
the second individual, whether it be Mr. Carver or Mr. Cassada,
had you already packaged up the first one?
A. Yes, ma’am.
Q. Okay. So you were done sealing and packaging and buccal
swabbing one individual and you moved on to the next individual?
A. Yes, ma’am. I didn’t go to the next one until it was
sealed.
Q. So then at some point you also got a buccal swab from Mr.
Neal Cassada?
A. Yes, ma’am.
Q. And now were you the individual that got the buccal swab
from Neal Cassada?
A. Yes, ma’am.
Q. Okay. The same way? Did you use a Q-tip and a kit and all
the instructions?
A. Yes, ma’am.
Q. And at that point what did you do with those Q-tips?
A. They were placed into a small white box and then placed into
an envelope like the other ones and it was sealed there.
Q. Now eventually when all this was said and done, you got the
two buccal swabs from Mr. Cassada and Mr. Carver, were they then
secured at the Mount Holly Police Department?
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A. Yes, ma’am.
Q. Mr. Cassada, he also consented to taking the buccal swab
from his cheek?
A. Yes, ma’am.
Q. And actually signed these consent waivers?
A.
That’s correct.
MS. HAMLIN: Your Honor, may I approach?
THE COURT: All right.
Q. I show you what’s been marked State’s 62 and see if you
recognize it.
A. Yes, ma’am.
Q. What is State’s Exhibit 62?
A. This is a North Carolina State Bureau of Investigation
envelope and within this envelope are the buccal swabs from Mark
Carver and the buccal swabs from Neal Cassada.
Q. And that was the SBI envelope that you received it back in?
A. Yes.
Q. If you could take the time and attempt to open that envelope
without hurting any of the other markings.
A. (Witness complies with request)
Q. When this came back to you these were the only two items in
there?
A. Yes.
Q. Okay, and it came back to you sealed like that?
A. Yes.
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Q. I am going to show you State’s Exhibit 63 which indicates
item number 57 and State’s Exhibit 64 which indicates item number
59. I am going to show you - is it okay if I stand here for a
little while, Your Honor? I show you State’s Exhibit 63, if you
would just take the time and look at that.
A. Okay.
Q. Do you recognize State’s Exhibit 63?
A. Yes.
Q. What is State’s Exhibit 63?
A. This is the white envelope that I was describing that
contains a buccal swab from - this one contains Mark Carver’s.
Q. Mark Carver’s buccal swab?
A. Yes.
Q. That you took from his cheek?
A. Yes.
Q. And that’s the actual envelope that you placed those
swabbings in?
A. Yes.
Q. Substantially the same condition as when you placed them in
those envelopes and then sealed them and went to the State Bureau
of Investigation?
A. Other than it has been opened here and here for testing.
Q. And signed by Ms. Winningham on those?
A. Yes, Ms. Winningham, and also here by another scientist, I
presume.
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Q. And that’s just on the envelope, not in the actual unsealing
of it?
A. There is a piece of tape that goes across the edge there
where it has been opened and it has been signed there.
Q. So other than testing purposes that envelope is in
substantially the same condition as when you placed those items
inside?
A.
Yes, ma’am.
MS. HAMLIN: I offer in evidence State’s Exhibit 63.
THE COURT: Let it be received and then we are going to
take our lunch break.

MS. HAMLIN: Okay.

THE COURT: Members of the jury, during the lunch recess
you are not to talk about the case with anyone. You are not to
read, watch or listen to any media accounts, visit the scene or
do any type of independent research. Again you are not to have
any contact or communication with any participant. We will
resume at 2:00. The sheriff will tell you what time he needs you
back here so that we can begin at 2:00 and the place he would
like you to return. Thank you for your attention. Mr. Sheriff,
you may escort the jury from the courtroom.

(Whereupon, the Court took a lunch recess from 12:30
until 2:00 P.M. and thereafter reconvened with the defendant, all
counsel and the jury present.)

Q. Before the lunch recess we were having you look at some
Terry - Direct/Hamlin - 179

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items, if I could draw your attention to State’s Exhibit 64. I
believe it is in front of you.

A. Yes, ma’am.
Q. Do you recognize that?
A. Yes, ma’am.
Q. What is State’s Exhibit 64?
A. This is the white envelope with my initials on it. It is
our item number 59 which in this case is swabs taken from Neal
Cassada.
Q. So those are those buccal swabs you referred to earlier,
the swabbings from the cheek tissue?
A. Yes.
Q. Okay, and those were the swabs that you actually took and
then packaged in that envelope?
A. That’s correct.
Q. And sealed it up and took it back to the Mount Holly
Police Department for security?
A. I was already at the Mount Holly Police Department, but it
was - yes, ma’am.
Q. Now is that particular envelope in substantially the same
condition as when you placed those swabs inside?
A.
Other than being opened for testing, yes, it is.
MS. HAMLIN: I offer into evidence State’s Exhibit
64.
THE COURT: Let it be received.
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Q. Now after you obtained the two buccal swabs, the one from
Mr. Mark Carver, the defendant, and the one from Mr. Neal
Cassada, did you eventually send those swabs to the State Bureau
of Investigation for testing?
A. Yes, ma’am.
Q. And were those actually driven to the State Bureau of
Investigation in Raleigh?
A. Yes, they were.
Q. And when was that done?
A. That was done - excuse me for a second. October 24, 2008.
Q. Okay. So that’s the same date that you also transported the
swabs from the car up to the North Carolina State Bureau of
Investigation?
A. I didn’t transport them. Sergeant Tindall did.
Q. Okay, but the same day that they were transported?
A. Yes, ma’am.
th

Q. Okay, and that October 24 of 2008 day, all these items were
kept separate and then brought to the State Bureau of
Investigation and then hand delivered to them?
A. Yes, ma’am.
Q. Now upon submitting all of these items to the State Bureau
of Investigation, the ones we referred to earlier, the two buccal
swabs and the swabbings from the car, did you request any sort of
testing be done to these items?
A. I requested that all of the swabbings done from the vehicle
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be tested for DNA evidence and if any were found to be compared
to the buccal swabs from Mark Carver and Neal Cassada.

Q. Do you also at that point ask that if DNA was found on the
swabbings from the car they be compared to the victim’s DNA?
A. Yes, ma’am.
Q. And they already had that blood sample at that point?
A. Yes, ma’am.
Q. Now during this investigation did you look into or do some
investigation into backtracking where Ms. Irina Yarmolenko was
the hours prior to her being found at the river?
A. Yes, ma’am.
Q. And did you eventually learn that she had made a deposit
at the State Employees Credit Union?
MR. PHILLIPS: Objection.
THE COURT: Sustained.
MS. HAMLIN: Your Honor, may we approach?
THE COURT: All right.
(Conference with counsel at the bench)

Q. So did you eventually retrieve some photographs from the
State Employees Credit Union over near the University Boulevard
area?
A. I didn’t retrieve them. Detective Addis did and he showed
them to me when he got back.
Q. Okay, and what other places did you - either you yourself or
ask someone to look into to try and figure out the whereabouts of
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Ms. Irina Yarmolenko prior to her death?

A. The State Employees Credit Union, the Goodwill on University
City Boulevard, and also the YMCA in Mount Holly along with a
couple of other places like Wendy’s in Belmont, Food Lion and an
Exxon station, but those were of no value to the investigation.
Q. Okay. So the Wendy’s, the Food Lion and Exxon were just
like places nearby?
A. Yes, ma’am.
Q. Okay. Were you able to gather any surveillance video from
those locations?
A. No, ma’am, nothing of value.
Q. Now did you ever have the opportunity to interview the
defendant, Mr. Mark Carver?
A. Yes.
Q. Okay. Do you see him in the courtroom today?
A. Yes, I do.
Q. Will you point him out to the jury?
A. He is sitting right there with the blue plaid shirt on.
Q. Now how many interviews of the defendant Mark Carver were
you involved in personally?
A. Two.
Q. And who else was present during those two interviews?
A. Special Agent David Crowe with the SBI.
Q. And were those particular two interviews, were they
recorded?
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A. Yes.
Q. Like on a DVD?
A. They were recorded with a hand held camera and then one
was recorded to a tape and then it was made into a DVD. The
other one was recorded and then put onto a DVD as well.
Q. Okay, and what were the dates of the two interviews that
you had with Mr. Mark Carver?
th

A. It was December 10th and December 12 .
Q. Okay. Now in both of these interviews was Mr. Mark Carver
informed of his Miranda rights?
A. I know on the 12th he was. I believe on the 10th he was as
well but I don’t recall.
Q. Do you need a moment to look into your file?
A. If you don’t mind.
Q. That’s fine.
A. My notes do not reflect whether or not he was read his
th th

rights on the 10 or not, but I know on the 12 that he was.

Q. Okay. Now on the 12th you did that because at that point
the defendant was under arrest?
A. That’s correct.
Q. Okay. So he was in custody at that point?
A. Yes, ma’am.
Q. But on December 10th when you had an interview with the
defendant, where was that interview?
A. It was at the Mount Holly Police Department.
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Q. And after that interview was complete, Mr. Carver actually
walked out of the room and left?
A. That’s correct.
Q. And prior to that he was told that he was free to leave?
A. Yes.
Q. Or that he was free to go, didn’t have to talk to you?
A. That’s correct.
Q. Okay. Did he talk to you on both December 10th and December
th

12 ?

A. Yes, ma’am, he did.
Q. Now you indicated earlier that both of those particular
interviews were recorded?
A.
That’s correct.
MS. HAMLIN: Your Honor, may I approach?
THE COURT: All right.
(Conference at the bench with counsel)
THE COURT: If you would go to the jury room for a few
minutes. Please remember not to discuss the case among yourselves
and there shouldn’t be anybody else back there with you so you
don’t have to worry about talking to anybody else other than the
sheriff.

(Whereupon, the jury left the courtroom)

THE COURT: Let the record show the jury has left the
courtroom. Further let the record show the Court conducted a
bench conference on the issue of the admissibility of certain

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interviews of the defendant. What says the defendant?

MR. RATCHFORD: Your Honor, at this point the defendant
would raise an objection to the admissibility of the two
interviews which were alluded to by Detective Terry’s testimony

on December 10 . I am assuming that he is talking about the one
in 2010, although a year was never given, and December 12, 2010.
These occurred at I believe the Mount Holly Police Department.
We contend the evidence that is going to be elicited is going to
be an interview given by Special Agent David Crowe with the North
Carolina SBI wherein Detective Terry was present along with Mr.
Carver. Special Agent Crowe was the one conducting the
interview. He is the one that was viewed on the interview.
Actually Detective Terry is sitting at a desk. I think you can
see his feet on part of the interview. He was asking questions,
maybe three or four. My understanding is that the State at this
point is not intending to call SBI Agent Crowe so we would, one,
state this is a definitely a confrontation problem and the
defendant has the right to confront his accusers and if Agent
Crowe is not placed on the stand and subject to cross examination
in everything he says, we would say would be not admissible. The
questions that he states, the responses he is trying to elicit,
and even the statements that he is stating that may or may not be
trying to elicit a response I guess would be matters of - matters
or points of law which Your Honor would need to decide upon. It
might be the situation where we - that the Court should view the

Terry - Direct/Hamlin - 186

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matter before the jury does to determine. These are
approximately an hour - about an hour each, but this is an
extremely, extremely important point of law which I think needs
to be settled outside the presence of the jury. So we would
object to these things coming in.

THE COURT: What says the State?

MS. HAMLIN: Your Honor, first of all, we actually are
showing that the dates on these particular recordings are
December 12, 2008 and December 10th of 2008 just for clarification
purposes and at this point we actually have not even attempted to
admit it, just to identify it, not admit it or play it in any
way, but we would ask at this point that Your Honor just stick
with the ruling that was given at the bench regarding this
objection.

MR. PHILLIPS: Your Honor, this may have something to do
with why we don’t have the jury in here. Of course it is about
the conspiracy portion which is State versus Littlejohn as the
Court is aware of, a Supreme Court case in 1965, and it may not
come to fruition but the Court needs to be aware of it and if you
observe the tape it could be on there. But, of course, as you
know, State versus Littlejohn deals with declarations which are
incompetent and inadmissible. The existence of a conspiracy may
not be established by the ex parte declaration of an alleged
conspirator made in the absence of his alleged conspirator, and
that’s what we would be talking about, would be Mark Carver out

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of the company of Neal Cassada and State versus Littlejohn says
that this is the - it is true where this conspiracy is
termination of the achievement of its purpose or by the failure
to achieve it and a confession or admission by one conspirator
after he has been apprehended is not in furtherance of the
conspiratorial purpose and his confession is not admissible
against others in the conspiracy, and that is very relevant, Your
Honor, if I could hand up that case.

THE COURT: All right. Unless that’s the threshold,
does the State intend to attempt to offer this?

MS. HAMLIN: These two videos?

THE COURT: Yes. If you are not going to offer them,
this is a moot point.

MS. HAMLIN: Not at this moment, no.

THE COURT: I am asking are you going to offer them,
period, at some time before you rest?

MS. HAMLIN: Probably not, no.

THE COURT: Probably. Okay. The second question is are
there admissions on there? If there aren’t admissions on there,
it is actually irrelevant.

MS. HAMLIN: I mean there are admissions of where he was
located and things of that nature. I mean he speaks and
indicates and provides information that could be construed as
admissions.

THE COURT: For example, other than saying I was on the

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river bank fishing.

MS. HAMLIN: Things like that. I didn’t touch the car.
I guess that is kind of a negative admission. The things of that
nature. Does he give a confession? No.

THE COURT: Well, I didn’t ask if he gave a confession.
The question is were there admissions against interest that would
otherwise be admissible as an exception to out of court
statements being proffered.

MS. HAMLIN: Yes.

THE COURT: So the second question is - or back to the
first question. Does the State intend to offer it?

MS. HAMLIN: At this point we don’t intend to offer
these two videos. We just plan on asking this detective what the
defendant told him, what he heard the defendant say during these
interviews.

THE COURT: You say your tapes, your DVD’s are more
corroborative of what the detective heard as opposed to
substantive evidence; is that right?

MS. HAMLIN: Right. We were identifying if in case we
decided to play them. We are also identifying them in case the
defense wanted to play them. We didn’t want them to recall
someone just to identify them.

THE COURT: I will allow you to identify them. If the
State intends to offer them I may have to review them in camera
to make sure that, a, you don’t have this conspiratorial evidence

Terry - Direct/Hamlin - 189

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problem, and, b, to make sure that the questions or statements
made by the officers aren’t testimonius so that they would be
subject to cross examination. So I will reserve ruling on that.
My initial inference and indication is - and I am still not
convinced otherwise - was that they would be admissible. If the
State gets ready to offer them I would like to know in advance.
Is there a transcript of these interviews?

MS. HAMLIN: There is a transcript of one.

THE COURT: Okay. We will let your officer, detective,
identify them, lay the foundation for it. I will reserve their
admissibility. Anything further regarding this?

MR. PHILLIPS: No, sir.

MR. RATCHFORD: No. Thank you, Your Honor. Thank you
for hearing us.

THE COURT: Sheriff, would you return the jury, please?

(Whereupon, the jury returned to the courtroom.)

THE COURT: Members of the jury, thank you for your
patience. As I had earlier indicated, these matters are going to
crop up from time to time. They are merely questions of law that
are not proper for your consideration. So please don’t speculate
on what’s been going on either at the bench or in the courtroom
while you were away. All right. The State may proceed.

MS. HAMLIN: Thank you, Your Honor.

Q. Now during this December 10, 2008 interview with Mr. Carver
you indicated that he was released after he spoke with you?
Terry - Direct/Hamlin - 190

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A. Yes.
Q. Okay. He wasn’t under arrest or in custody at that point?
A. No, ma’am.
Q. Now during the December 12th interview of 2008, he was
actually under arrest when you had that interview with him?
A. Yes, ma’am.
Q. You and Agent Crowe?
A. Yes, ma’am.
Q. Okay, and you indicated earlier prior to the recess that he
was read his Miranda rights?
th

A. On the 12, yes.
Q. Okay, and on that day did he indicate that he understood his
rights?
A. Yes, he did.
Q. And did Mr. Carver at that point agree to speak to you?
A. Yes, ma’am.
Q. Now during those interviews did Mr. Carver tell you where he
was during the time frame that Ms. Yarmolenko’s body was
discovered?
A. Yes, he did.
Q. Okay. Where did he say he was?
A. He said that he was at the fishing spot that we saw him at
that day.
Q. Okay, and did Mark Carver tell you who he was fishing with
that day?
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A. He said he was fishing with his cousin, Neal Cassada.
Q. Did he say approximately what time he arrived at that
fishing spot that day, May 5, 2008?
A. Which interview?
th

Q. The first interview, December 10 .
A. During that interview he stated that he arrived there
between 10:00 and 11:00 A.M.
Q. Now during the second interview, December 12, 2008, did Mr.
Carver indicate to you what time he arrived at the fishing spot
that day?
A. Yes, he did.
Q. The May 5, 2008 day.
A. Yes, he did.
Q. What time did he say he arrived then?
A. Approximately 10:30 to 11:00.
Q. Now while you were speaking to the defendant while the
defendant was speaking, did he tell you if he heard anything
while he was fishing at the river that day, the day that Ms.
Irina Yarmolenko’s body was found?
A. Yes, he did.
Q. What did he tell you he heard?
A. He said that he heard a scraping sound and he said that he
heard a jet skier, a female jet skier, use the F word and then he
heard a male jet skier say there is a dead body over here, call
911.
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Q. By the way, did you learn that Mr. Mark Carver had a cell
phone on him that day, May 5, 2008?
A. I believe he did, yes, ma’am.
Q. Did he call 911?
A. To my knowledge, no.
Q. Now who did Mark Carver tell you or tell you and Agent Crowe
that he saw that day at the river?
A. I’m sorry. Repeat the question.
Q. Who did Mark Carver, if anyone, tell you that he saw at the
river that day, May 5, 2008?
A. He said the only person that he saw there on the river bank
was his cousin, Neal Cassada, and he said that he saw a black man
in a boat and he also saw two jet skiers come by.
Q. When you say come by, did he see them on the river or did he
see them on the land? Did he tell you?
A. He said he saw them go by and then he said that they came
back. I don’t remember if he said it in those words but he did
say once that he heard the male jet skier say there is a dead
body over here, call 911, and he heard the female jet skier say
the F word.
Q. But he didn’t say that he saw the jet skiers like riding on
the land?
A. No, ma’am, he didn’t.
Q. And jet skis go in the water, right?
A. Yes, ma’am.
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Q. Now did the defendant tell you during those interviews that
he saw the victim, Ms. Yarmolenko?
A. No.
Q. Did the defendant tell you he heard that victim on the river
bank?
A. No.
Q. And during those interviews approximately how many times did
Mr. Carver deny hearing or seeing the victim, Irina Yarmolenko?
A. Dozens.
Q. Now during these interviews that you talked to Mr. Carver
did he tell you that he saw the victim’s car?
A. No.
Q. And did he tell you that he touched the victim’s car?
A. No.
Q. How many times did the defendant deny seeing or touching or
being near the victim’s car at all?
A. Dozens.
Q. Now did you confront Mr. Mark Carver about his cousin’s DNA
being on the car?
A. Yes, we did.
Q.
What did he say about that?
MR. RATCHFORD: Objection.
THE COURT: Sustained.
Q. What did Mr. Carver say when you talked to him about the DNA
being on the car?
Terry - Direct/Hamlin - 194

-195

MR. RATCHFORD: Objection.
THE COURT: Sustained.
MS. HAMLIN: May we approach?
THE COURT: Yes.
(Conference with counsel at the bench)

Q. Let’s go take a couple of steps back, Detective Terry.
Prior to this interview on December 10, 2008 and then December
12th of 2008, had you received back the examination from the State
Bureau of Investigation of some of the DNA swabs that had been
compared to Mr. Carver, Mr. Cassada and the swabs from the car?
A. Yes, ma’am.
Q. Okay. So you had received back those results?
A. Yes, ma’am.
Q. Okay, and is that one of the reasons at that point you
decided to bring in Mr. Carver and talk to him?
A. Yes, ma’am.
Q. Now we were talking about a question that was asked of Mr.
Carver and you indicated that dozens of times he denied seeing
the victim’s car or being near the victim’s car.
A. That’s correct.
Q. Now whether it is true or not, did you confront - whether it
is true that his DNA was on the car or not, did you confront the
defendant, Mr. Carver, about his cousin Neal Cassada’s DNA being
on the victim’s car?
A. Yes.
Terry - Direct/Hamlin - 195

-196

MR. RATCHFORD: Objection.
THE COURT: Overruled.

Q. And what did Mr. Carver say to that?
A. He said he didn’t know why it was there because Neal was
with him the whole time.
Q. Did you eventually confront the defendant - whether it is
true or not that his DNA was found on the victim’s car, did you
confront the defendant about why his DNA, Mark Carver’s DNA, was
found on the victim’s car?
A. Yes.
Q. And what did the defendant say about that?
A. He said he didn’t know why it was there. He couldn’t
explain it.
Q. At that point did he continue to deny seeing or being near
the victim’s car?
A. Yes.
Q. Did he continue to deny hearing or seeing the victim?
A. Yes.
Q. But during this interview didn’t Mr. Carver actually
describe the victim to you?
MR. RATCHFORD: Objection.
THE COURT: Overruled.

A. Yes, he did.
Q. How did he describe the victim to you?
A. He said that she was - I believe the words he used is a
Terry - Direct/Hamlin - 196

-197

little thing or a little girl. He described her as being little
and he said that she came up to him about right here
(indicating).

Q. Because he actually stood up and showed you how far she came
up to him?
MR. RATCHFORD: Objection, Your Honor. May we approach?
THE COURT: All right.
(Conference with counsel at the bench)
THE COURT: Overruled.

Q. So Mr. Carver actually stood up?
A. Yes.
Q. And he indicated actually on his own body where Ms.
Yarmolenko came up to on him?
A. Yes.
Q. And were those his words?
A. Then he followed it with “I guess. I’ve never seen her.”
Q. Okay. So then even after that he continued to deny seeing
her?
A. Yes.
Q. So then did you eventually ask him again and say, well,
then, how did you know how tall she was, things of that nature?
Was that talked about at that point?
A. I don’t recall if I asked it or not, but it was talked
about, yes.
Q. Now there was certainly no news footage of Irina Yarmolenko
Terry - Direct/Hamlin - 197

-198

standing right next to the defendant right here next to him?

A. No, ma’am.
Q.
But he somehow knew how tall she was?
MR. RATCHFORD: Objection.
THE COURT: Sustained. We’ve been over that.
MS. HAMLIN: Nothing further.
THE COURT: Cross examination.
CROSS EXAMINATION BY MR. RATCHFORD:

Q. And Mr. Carver also said during that interview when he was
instructed by Agent Crowe to stand up and show how tall Ms.
Yarmolenko was that “I guess I saw it on TV”?
A. I believe so, yes, sir.
Q.
In fact, he made several statements about seeing MS.
HAMLIN: Objection to anything Carver said.
THE COURT: Overruled.
Q. Now I want you to take you back a little bit. In that
th
th

interview on December 10 and December 12 of 2008, Special Agent
David Crowe of the North Carolina SBI was present during that
period of time, was he not?

A. Yes, sir.
Q. He was the one actually conducting the interview, correct?
A. On the 12th I spoke with Mr. Carver for a period of time.
Q. How long?
A. I wouldn’t be able to say without Q.
A couple minutes?
Terry - Cross/Ratchford - 198

-199

A. Maybe a little bit longer than that. Probably about ten
minutes or so.
Q. That interview was approximately an hour in length or more?
A. Yes, sir.
Q. So Agent Crowe was conducting at least fifty minutes of
that?
A. He did the majority of it, yes, sir.
th

Q. And he did, in fact, all the one on the 10 , correct?
A. I believe so, yes, sir.
Q. And that was the gentleman that was seated in here during
jury selection next to you with the bald head?
A. Yes, sir.
Q. Let’s take you back a little bit to when you first got there
back on May 5, 2008 and you arrived - you said you came down a
path, correct?
A. It was a trail leading into the woods, yes, sir.
Q. That path or that trail was large enough to drive a vehicle
down, correct?
A. Yes, sir.
Q. In fact, you said you found two vehicles down at the
“fishing spot”?
A. Yes, sir.
Q. A white Jeep and a S10 Blazer?
A. That’s correct.
Q. And there were actually two more individuals down there,
Terry - Cross/Ratchford - 199

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John and James Beatty, correct?

A. That’s correct.
Q. Did you have a conversation with them?
A. I had a conversation with John.
Q. John?
A. Yes, sir.
Q. Is John someone you knew before this thing?
A. I did not know him personally, no, sir, I didn’t.
Q. And did you have to - to get to that trail did you have to
drive through a construction site?
A. I didn’t drive through there, no, sir. I walked through the
woods.
Q. There is a construction site right at the top of that hill,
correct?
A. At the time there was a construction site at Water’s Edge
subdivision, yes, sir. It was down the road just a little ways
away from the crime scene, yes, sir.
Q. Now that dirt road actually - or trail led right up to that
construction site, correct?
A. From there, yes, it did.
Q. That’s not the way the scene is now because there has been a
bunch of grading and construction at that area, correct?
A. Yes, sir.
Q. But as of May 5, 2008 you drove through the construction
site and actually had to wind your way down to get to that
Terry - Cross/Ratchford - 200

-201

“fishing spot”?

A. Yes, sir.
Q. Were you responsible for doing any of the canvassing of the
neighborhood right near the construction site?
A. Not that day. I did one later and knocked on some doors,
yes, sir.
Q. You and Detective Addis?
A. I don’t recall exactly who was with me but I know that I was
there and knocked on a few doors but I was unable to talk to
anyone.
Q. You were the lead investigator on this case for Mount Holly?
A. Yes, sir.
Q. So that all the information that was gathered through the
SBI or other officers in your department or individuals such as
CSI Workman, it all kind of filtered back through you?
A. Yes, sir.
Q. How many construction workers at that site were interviewed?
A. I personally didn’t interview any.
Q. In fact, there were no construction workers interviewed at
that site, correct?
A. No, sir, I don’t believe so.
Q. There was grading and bulldozing and stuff going on on May
th

5 , correct?

A. I don’t recall seeing any but Q.
You can’t say that there was not, correct?
Terry - Cross/Ratchford - 201

-202

A. No, sir, I can’t, because I never - I don’t recall leaving
the crime scene. Once I was there I stayed there. I don’t
recall going up the hill and down to that construction site.
Q. When you - and you interviewed - you said you did not talk
th

to Mr. Carver on May 5 but when you came up to the fishing spot
Officer Ellison with your department had talked to him?

A. Yes, sir.
Q. And it was also your information that Officer Ellison had
talked to John and James Beatty down there?
A. Yes, sir.
Q. And actually I think you got a ride from the Beattys back to
the top of the hill?
A. John, yes, sir.
Q. How long were the Beattys there before you got there?
A. They said they had just arrived.
Q. Objection. That’s not what I asked.
A.
I’m sorry.
MS. HAMLIN: May we approach?
THE COURT: Repeat your question.
Q. The question was how long were the Beatty boys there?
THE COURT: That was not your original question so go
ahead and answer the question he just asked.

A.
How long were they there?
THE COURT: Yes, sir.
A. I don’t know to be certain. I can only go by what they told
Terry - Cross/Ratchford - 202

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me.

Q. At some point did you request John and James Beatty to give
you a DNA sample?
A. Yes, sir.
Q. Did they do so?
A. Yes, sir.
Q. Was that submitted to the SBI for testing?
A.
Yes.
MR. RATCHFORD: Approach the witness, Your Honor?
THE COURT: Yes, sir.
Q. I show you Exhibit 10 and 11 that you previously identified
or has been previously identified as images of a car from the
YMCA camera. Take a moment to refresh your recollection, please.
A. All right.
Q. That was part of your investigation?
A. Yes.
Q. Did you and another detective take those images to NASA in
Florida?
A. Not these images directly but we took a disc down there that
contained all of the images.
Q. Including those?
A. Yes, they were on that disc.
Q. And is it true that your request of NASA was to try to
enhance the images on that digital format in such a way that you
might identify who was in the vehicle?
Terry - Cross/Ratchford - 203

-204

A. We wanted it cleaned up, yes, so we could see a hundred
percent. We were trying to get a tag number, see who was
driving, things like that.
Q. You were unable to do that, correct?
A. They stated that the quality of the disc was too poor to
enhance.
MR. RATCHFORD: Approach the witness again?
THE COURT: All right.

Q. The area around the car that was found as being weedy and
brushy or it has been described as that, would you agree with
that?
A. It is overgrown, yes, sir.
Q. I show you what is marked as Exhibit Number 14. Would you
agree with that - the contention that it was weedy and overgrown
on the 5th of May, 2008?
A. Yes. It was high grass and overgrown, yes.
Q. Now if you will point to me, show me, and then we are going
to do it for the jury. In what area do you say that the fishing
spot is?
A.
It is over this way.
MR. RATCHFORD: May I ask the witness to step down,
please?
THE COURT: Yes.
(Witness leaves stand)

Q. If you would take Exhibit Number 14 and if you will point
Terry - Cross/Ratchford - 204

-205

to where you just indicated - point to the jury where you
indicated that the fishing spot was located.

A. (Indicating) It’s over this way.
Q. So it is not actually on the photo but it will be off to
the jurors’ right?
A. That’s correct.
Q. And showing you what has been marked as 22, State’s 22,
would it be - the fishing area be towards you, towards the left
in the photo?
A. Yes, sir, it would be over here.
Q. Am I correct in stating there is a lot of trees and woods
and stuff just to the right of this A.
I wouldn’t say Q.
- bushed down area I guess you would say?
A. I wouldn’t say a lot. There is a patch of woods here and
then just on the other side of those woods is another sort of
overgrown area kind of the same as this. The trees are not - no
trees there and then the fishing spot is right next to that area.
Q. Okay. Thank you. You can return.
A. (Returning to witness stand)
Q. So there is actually kind of two overgrown areas between
the Yarmolenko car and the fishing spot?
A. Directly in between it, yes, sir.
Q. You could not see - when you were down at the fishing spot,
you could not see these cars - this car, correct?
Terry - Cross/Ratchford - 205

-206

A. I could not see her car, no, sir.
Q. In fact, you - were you present when Ms. Pierce testified?
A. Yes, I was.
Q. Did you hear her statement that she was approximately ten
feet from the car and she had to stand up on her jet ski just to
see Ms. Yarmolenko laying on the ground?
A. Yes, sir, I heard that.
Q. Would that be a fair statement? Well, let me ask it another
way. Did you ever get out in the water and look?
A. No, sir, I didn’t.
Q. Do you know who kept a crime scene log?
A. No, sir.
Q. Isn’t that a standard practice for a crime scene, just
about any crime scene, that a crime scene log be kept and each
person going in and under the tape or going under the tape and
back be logged?
A. Yes, sir, it’s standard practice.
Q. You don’t know who did it in this case?
A. To my knowledge, there was not one done.
Q. In those photographs that we saw earlier there are several
rescue personnel. I believe you had pointed out maybe on one or
two of the pictures that there were firemen in the background.
A. Rescue personnel, firemen, yes, sir.
Q. Were any of their DNA taken?
A. No, sir.
Terry - Cross/Ratchford - 206

-207

Q. And the camera that you retrieved, it was retrieved from
the trunk, correct?
A. That’s correct.
Q. No tests were provided or conducted on that camera to
determine whether it was even operative, were they?
A. I did not perform any, no, sir.
Q. Did you request any to be performed?
A. I requested that it be opened to see if there was any
film inside, but as far as operability, no, sir, I did not
request that.
Q. There was actually film found in the glove box, right?
A. There was some film in there that had already had exposures
on it, yes, sir.
Q. And you had that film developed?
A. Yes.
Q. Now we heard some discussion about a - you and Detective
Addis going back to the scene and standing and yelling, correct?
A. We did some normal voices and some raised voices, yes, sir.
Q. Now you did that October 7, 2010, correct?
A. Let me check my notes. Yes.
Q. How many boats were on the water between 10:30 A.M. and
1:20 P.M. on May 5, 2008?
A. I can’t answer that.
Q. How much - how many people were at that construction site,
banging hammers or grading, between those same hours on that same
Terry - Cross/Ratchford - 207

-208

day?

A. I can’t answer that.
Q. So when you did the - how much boat traffic or construction
traffic was present or ongoing on October 7, 2010 when you
revisited the scene and yelled at each other?
A. I don’t recall.
Q. You also testified that you were present when Officer
Workman with the Gaston County Police Department did what we call
process the vehicle, correct?
A. For DNA, yes, sir.
Q. He also processed it for prints, too, didn’t he, latent
prints?
A. No, sir, not the day I was there with him.
Q. All right. To your knowledge, he did do that, correct?
A. He did not, no, sir.
Q. Did another A.
I believe he took some prints on the crime scene that day,
but as far as an actual search warrant being issued and served on
the vehicle and processed for fingerprints, I believe that was
done by Crime Scene Investigator Costner with Gaston County Crime
Scene.
Q. It was done, correct?
A. Yes, sir, it was.
Q. At some point?
A. Yes, sir.
Terry - Cross/Ratchford - 208

-209

Q. And this was done after the vehicle was in police custody,
correct?
A. Yes, sir.
Q. You sent at least twenty-two swabbings off to the SBI lab
for testing, correct?
A. Yes, sir.
Q. And you also sent or requested those - at least some of
those swabbings be sent to the Richland County Sheriff’s
Department in South Carolina, correct, for further testing?
A. Yes, sir.
Q. At some point did you make additional swabbings or request
additional testing other than the twenty-two items?
A. I don’t understand your question. I’m sorry.
Q. Okay. Let me rephrase. You requested testing of items
such as the gear shift, pliers, the camera, ignition switch,
envelopes that were found in the car?
A. Yes, sir.
Q. Those were done on a later date, correct?
A. Yes, sir.
Q. And you had also requested testing on Ms. Yarmolenko’s
skirt and sweatshirt?
A. That’s correct.
Q. And those were done on a later date after the ones I just
mentioned?
A. Yes, sir.
Terry - Cross/Ratchford - 209

-210

Q. Mr. Carver and Mr. Cassada were not the only - and Ms.
Yarmolenko were not the only three - let me start over. Mr.
Cassada, Mr. Carver, Ms. Yarmolenko, John and James Beatty, were
not the only five people that you requested DNA for, correct?
A. That’s correct.
Q. You also requested DNA samples and received such samples on
William Matthews, Robert Kiser, Richard Welch, Ricky Simmons,
Sean Howard, Larry Wade and Archie Davis?
A. That’s correct.
Q. That was in addition to the Cassada and Carver requests,
correct?
A. That’s correct.
Q. When you requested Mark Carver to give a sample, he
consented, correct?
A. Yes.
Q. And each time you requested to talk to Mr. Carver he came
down and talked with you, did he not?
A. Yes, sir.
Q. Whether it be true or not, did you ever tell Mark Carver
that you had DNA results from him on the bungee cord?
MS. HAMLIN: Objection.
THE COURT: Overruled.

Q. Did you ever tell Mark Carver, whether it be true or not,
that you had DNA results from him on the bungee cord?
A. No, sir, I didn’t.
Terry - Cross/Ratchford - 210

-211

Q. Or the drawstring?
A. No, sir.
Q. Or the ribbon?
A. No, sir.
Q. And you talked to Mark Carver at least six times, correct?
A. No, sir, I didn’t.
Q. Or should I say your agency or someone on behalf of your
agency talked to Mark Carver at least six times. If I can, I
will give you the dates. Twice on 5-5-08, once on 5-15-08, once
on October 6, ‘08, once on 12-10-08, and another one on 12-12-08.
th

A. I don’t recall twice on the May 5 . I only recall once on
th

May 5 and that was by Corporal Ellison, but the other ones are
correct, yes, sir.

Q. Did you not get information from Detective - sorry - Special
Agent Crowe that he talked to him later that night?
A. Excuse me for a second. I don’t recall receiving that
information right off - right offhand. I don’t recall receiving
that information.
Q. Isn’t it true that Mark came back to the scene later that
night to try to retrieve fishing nets and was not allowed entry
into the scene?
A. Yes, sir, that’s correct.
Q. And Special Agent Crowe was still there as far as you know?
A. As far as I know, yes, sir.
Q. Do you know how many times the three things found around
Terry - Cross/Ratchford - 211

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Ms. Yarmolenko were tested by any testing agency?

A. They were requested to be tested by the SBI and also
Richland County Labs. I don’t know how many tests were done on
them once they got there, but they were requested to be tested
twice by those two labs.
Q. And you received results back from both of those labs as to
all the testing, correct?
A. I have received results back from the SBI on that testing,
yes. As far as any physical results from Richland County, I have
not received a report back from them yet.
Q. You never got a statement from any person seeing Ms.
Yarmolenko with Mr. Carver, did you?
A. No, sir, I didn’t.
Q. You never got a statement from anyone seeing Mr. Cassada
with Ms. Yarmolenko, did you?
A. No, sir.
Q. When you initially got involved in this investigation, you
went and interviewed several people from UNCC?
A. Yes, sir.
Q. Including Ms. Yarmolenko’s roommates and some what you
learned to be maybe ex-boyfriends?
A. I never interviewed her ex-boyfriends, no, sir, but they
were interviewed.
Q. Okay, and you got the results of those interviews, correct?
A. Yes.
Terry - Cross/Ratchford - 212

-213

Q. Would it be fair to say that you were investigating the
theory that she was abducted from UNCC?
MS. HAMLIN: Objection.
THE COURT: Overruled.

A. Repeat the question. I’m sorry.
Q. Would it be fair to say that you were investigating a
theory that she was abducted from UNCC or the area?
A. We were investigating all types of scenarios, abduction, in
the beginning, and then also murder there, homicide there.
Q. You don’t have any - you don’t have any witness that can
come forward in this courtroom and say that they saw or have
evidence that Mr. Carver placed that bungee cord around Ms.
Yarmolenko’s neck, can you?
A. No, sir.
Q. Or the ribbon?
A. No, sir.
Q. Or the drawstring?
A. No, sir.
Q. Those would be our questions.
MS. HAMLIN: I just have a couple, Your Honor.
REDIRECT EXAMINATION BY MS. HAMLIN:

Q. Now Mr. Ratchford asked you about the Richland County
scientists.
A. Yes.
Q. Now you know that the report or the results of that have
Terry - Redirect/Hamlin - 213

-214

been returned, have been completed, of their testing?

A. Yes. I have heard that they have been returned. I have not
seen a report.
Q. Because that report went directly to the DA’s office?
A. That’s correct.
Q. Okay, and then was provided to the defense?
A. That’s correct.
Q. Now Mr. Ratchford asked you a couple of questions about
how many boats were at the river on May 5th of 2008.
A. That’s correct.
Q. And you indicated that you didn’t know?
A. That’s right.
Q. But Mr. Carver told you how many boats he saw, right?
A. Yes.
Q. How many boats did Mr. Carver say that he saw at the river
when he was there May 5, 2008?
A. He said he saw one.
Q. And Mr. Carver also told you that he saw some jet skiers?
A. That’s correct.
Q. And how many jet skiers did he say he saw?
A. He said he saw two.
Q. Now Mr. Ratchford asked you a couple of questions about this
construction. This construction actually for this housing
development wasn’t right there at the crime scene, was it?
A. No, not right there at the crime scene. It was back towards
Terry - Redirect/Hamlin - 214

-215

Highway 273 from the crime scene.

Q. Okay, and you didn’t personally see any construction
workers there at the crime scene?
A. No, ma’am, I didn’t.
Q. Did you even see any in the near area?
A. No, ma’am.
Q. And when you spoke to Mr. Carver I believe you testified
earlier that he said he just heard some scraping sounds?
A. That’s correct.
Q. But did he talk about hearing all this horrible construction
work?
A. No, ma’am.
Q. And all this nailing and banging?
A. No, ma’am.
Q. In fact, he did tell you that he even could hear voices out
on the river?
A. That’s correct.
Q. The two jet skiers just talking back and forth?
A. Yes, ma’am.
Q. Now Mr. Ratchford talked about John and James Beatty.
A. Yes, ma’am.
Q. And how they provided you voluntarily with a DNA sample?
A. That’s correct.
Q. And then you eventually sent those DNA samples to the State
Bureau of Investigation for analysis?
Terry - Redirect/Hamlin - 215

-216

A. Yes, ma’am.
Q. For comparison to all the evidence that was collected, the
swabbings from the car, the bungee cord, all that kind of stuff,
right?
A. That’s correct, yes, ma’am.
Q. And you eventually received results back?
A. Yes.
Q. From the State Bureau of Investigation?
A. Yes.
Q. And at that point did you have to do any further
investigation into finding out anything about the Beattys?
A. No, ma’am.
Q. Okay. So at that point they were no longer suspects or
involved as far as you were concerned?
A. That’s correct.
Q. Now Mr. Ratchford also asked you - he gave a laundry list
of names of people that had swabbings taken from them and sent to
the State Bureau of Investigation.
A. That’s correct.
Q. He mentioned the ones that were taken after the results
were received from his client Mr. Carver.
A. That’s correct.
Q. So even after you received results from Mr. Carver were
there other people like Crime Stopper tips coming in?
A. Yes, ma’am.
Terry - Redirect/Hamlin - 216

-217

Q. Because this case was pretty well televised?
A. Yes, ma’am, it was.
Q. And, in fact, every year didn’t they do kind of like a
renewal and look back and see where we stood and stuff like that?
A. I believe so, yes, ma’am.
Q. And after you received all those swabbings that Mr.
Ratchford talked about, you sent all those swabbings of all those
Crime Stopper tips and things of that nature to the DNA lab in
Raleigh, State Bureau of Investigation?
A. Yes.
Q. They all were returned back to you?
A. Yes, they were.
Q.
And were they all eliminated as suspects?
MR. RATCHFORD: Objection.
THE COURT: Sustained.
Q. Did you have to do any further investigation into those
individuals based on those results?
A. No, ma’am.
Q.
I don’t have anything further.
THE COURT: Anything else?
MR. RATCHFORD: Yes, sir.
RECROSS EXAMINATION BY MR. RATCHFORD:

Q. You requested eight individuals be tested for DNA sometime
after 2010, correct?
A. Excuse me for a second.
Terry - Recross/Ratchford - 217

-218

Q. Yes, sir.
A. There were several people - several items requested to be
tested in 2010, yes, sir.
Q. And that was for Mr. Kiser, Mr. Welch, the Beatty brothers,
Mr. Simmons, Mr. Howard, Mr. Wade and Mr. Davis, correct?
A. That’s correct.
Q. Now you had just stated that you gained information that
Mr. Carver only saw three people that day or four, including Mr.
Cassada, the two jet skiers, the person on the boat, and Mr.
Cassada. Is that correct?
A. Yes, sir.
Q. And he gave you a statement to that effect?
A. Yes, sir.
Q. Actually when you walked up to the fishing spot Mr. James
Beatty and John Beatty were there, also, next to Mr. Carver,
correct?
A. They weren’t next to him, no, sir. They were up the trail
just a little ways from him, yes.
Q. Could you see Mr. Carver from where you were at?
A. Yes, sir.
Q.
Those would be my questions.
THE COURT: Anything further?
MS. HAMLIN: Nothing further.
THE COURT: Thank you, sir. You can step down. Members
of the jury, we will take our afternoon recess at this time.

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Remember not to have any discussions about the case or contact
with any participant. We will resume at 3:30. Sheriff, you may
escort the jury from the courtroom.

(Whereupon, the Court took an afternoon recess from

3:15 to 3:30 P.M. and thereafter returned with the defendant, all
counsel and the jury present.)

THE COURT: The State may proceed.

MS. HAMLIN: Thank you, Your Honor. The State calls

Detective Workman.
JIM WORKMAN, having been duly sworn, testified as follows during
DIRECT EXAMINATION BY MS. HAMLIN:

Q. Please state your name.
A. Detective Jim Workman.
Q. How are you employed?
A. Crime scene technician, Gaston County Police Department.
Q. How long have you worked with the Gaston County Police
Department?
A. A little over twelve years.
Q. You indicated your specific position is crime scene
investigation?
A. That’s correct.
Q. Also known as CSI, I guess?
A. Correct.
Q. Now what does a crime scene investigator do?
A. We are called out to various crimes ranging from larcenies
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all the way to burglaries, bank robberies, homicides. We attempt
to locate evidence, collect the evidence, process the scenes,
photographs and so forth.

Q. Now describe what type of training you have had in the area
of evidence collection, specifically DNA swabs.
A. Evidence collection, I’ve been to and certified in the
International Association for Identification, which deals with
collecting, preserving and proper packaging of evidence. The DNA
specifically, it’s been mainly just publications in the field of
crime scene and talking to different labs on how they like to
have evidence submitted.
Q. But you collect DNA evidence or DNA swabs similar to like
you collect any sort of evidence, whether it be blood or semen or
things of that nature when it comes to packaging and things of
that nature?
A. Correct.
Q. Okay. Now describe what type of training you have in the
area of latent print analysis for what the jurors may know as
fingerprint examination.
A. Fingerprint examination, I have training through the North
Carolina Justice Academy, through CERCI Corporation, and
identifying and examining latent and known prints for different
characteristics to make identifications.
Q. Approximately how many crime scenes have you investigated
in your career as a crime scene investigator?
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A. In the thousands.
Q. And approximately how many of those involved latent print or
fingerprint analysis?
A. Again in the thousands.
QQ.. And approximately how many of those involved the collection
of DNA swabs or samples?
A. Probably close to a hundred. That’s relatively still not
something that is done on a regular basis.
Q. And it is, of course, a newer science than latent print
examination?
A. That’s correct.
Q. Now have you ever testified in the North Carolina courts
as an expert in latent print analysis?
A. I have.
Q. Approximately how many times?
A. Five.
MS. HAMLIN: Your Honor, at this point we would tender
Officer Workman or Detective Workman - I’m sorry - as an expert
in latent print analysis.

MR. PHILLIPS: No objection.
THE COURT: Very well.

Q. Now were you so employed with the Gaston County Police
Department as a crime scene investigator back on May 5, 2008?
A. I was.
Q. Did you respond to a wooded, overgrown area near the
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Catawba River in Mount Holly?

A. I did.
Q. Why did you respond?
A. I was requested by the Mount Holly Police Department to
assist them in an investigation of a deceased.
Q. Approximately what time was that?
A. I arrived on the scene at 2:10. I have in my notes 1410
military time, 2:10 P.M.
Q. And that was on May 5th of 2008?
A. That’s correct.
Q. Now describe the weather conditions that day.
A. It was a hot, muggy, clear day.
Q. Now who was present when you arrived at the scene?
A. When I arrived at the scene Detective Terry and Detective
Walls with the Mount Holly Police Department that I recognized
were down there. Several members of the rescue squads and
paramedic units were there. I believe the chief of Mount Holly
might have been there at the time.
Q. And describe this wooded area or this area where you had
responded.
A. Where I responded to and parked my vehicle was on a trail
at the top of a hill. It was heavy underbrush and both sides of
the heavy underbrush area was thick trees and to the back side of
my van where I parked was also a thick wooded area with trees.
Q. And did you eventually walk down to the area where the crime
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scene tape was located?

A. I did.
Q. And describe that area.
A. Heavy underbrush leading right up to the edge of the water
on the river.
Q. And what did you observe upon entering the scene at that
point?
A. I observed a dark blue Saturn four door sedan. I noted the
North Carolina license plate as XRD5018 and observed some damage
to the front of the vehicle and both driver’s side doors were
open on the vehicle.
Q. Did you observe anything next to the vehicle?
A. I observed a white sheet that was covering a body.
Q. During the time that you were there was that white sheet
eventually removed?
A. It was.
Q. Was that for the purpose of taking photographs?
A. I believe why it was removed while I was down there for was
removal of the body.
Q. Okay, and at this point when you arrived were you involved
in processing any part of the scene?
A. I was asked to conduct latent print processing to the
vehicle to check for fingerprints.
Q. Okay, and was that done? That latent processing, is that
what we call that fingerprint examination?
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A. Yes, it is.
Q. Okay, and you did that right at the scene?
A. That’s correct.
Q. Okay, and was this on the vehicle that was located next to
the white sheet where the victim was?
A. That’s correct.
Q. Describe what latent print analysis is. What is that?
A. Latent prints are invisible to the eye and that’s why we use
either powders or chemicals to develop them, to bring them out so
we can see them, and also - that’s the development part. Then we
use different methods to lift them. In this case I used black
powder. I dusted with a brush, the vehicle with the black
powder. When the prints were developed I then used a wide piece
of clear tape to wet the prints and place them on a card.
Q. Now when you used this powder you are talking about to lift
the fingerprints, are all fingerprints that you lift, are they
usable or valuable for identification purposes?
A. No, they are not.
Q. Okay, and what does it mean when a latent print or a
fingerprint has no value for identification purposes?
A. There can be several factors that render a fingerprint non
valuable. It could be how wet the person’s fingers or hands were
that left the print. It could be the service of the item that
the prints were left on. It could be atmospheric conditions such
as rain or fog, mist, can alter them. It can be the way the
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prints were - the items was touched. It may not be touched
perfect and may leave a smear which alters and basically destroys
the ridge detail.

Q. So in order to make a fingerprint comparison, in order to
have a usable print, it has to have enough ridge detail, not
smeared, not smudged, almost like perfect conditions?
A. Just about, yes, ma’am.
Q. So even if you are able to look at something from - like
from your just naked eye and tell that it could be fingerprint,
you may not be able to lift it for purposes of analysis?
A. That’s correct. I can lift it but I may not be able to
make an identification during my examination of it.
Q. Okay. But when you lift it, even if you are not able to
compare it, do you know it’s a fingerprint?
A. Sometimes I do, yes, ma’am.
Q. Okay. So you can tell it’s a fingerprint. You just don’t
have enough detail to compare it with a known sample?
A. That’s correct.
Q. Now many latent or fingerprint impressions did you lift
from the vehicle that was found next to the victim on the
riverbank, that blue Saturn you just talked about?
A. Thirteen.
Q. And of those thirteen prints that you lifted from that car
next to the victim, how many were of identification value?
A. I have one that was of some value.
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Q. Were you able to compare it to any known samples?
A. No, we were not.
Q. So none of them were having enough ridge detail to actually
be used for comparison purposes?
A. That’s correct.
Q. Now is that unusual?
A. No, it’s not.
Q. And is that because of the smudges and things of that nature
that you talked about earlier?
A. That’s correct.
Q. So out of all of the lifts that you lifted from the car,
were you able to compare those prints to anyone?
A. No, I was not.
Q. You weren’t even able to compare those fingerprints to, say,
the defendant?
A. No, I was not.
Q. Because they weren’t of value?
A. That’s correct.
Q. Now after you looked at these fingerprints and after they
were lifted, did you actually enlist the help of some other
detectives with the crime scene investigation bureau to maybe see
if there was something you were missing?
A. Yes, I did.
Q. Okay, and did you receive any positive results from any of
those members?
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A. No, I did not.
Q. Now were fingerprint lifts taken from the interior of the
victim’s vehicle?
A. I believe one of the other crime scene detectives did that
at a later time.
Q. Okay, and that was Detective Costner?
A. That’s correct.
Q. Okay. Did he provide you with those lifts?
A. I do not have them with me. I had seen the lifts.
Q. And he provided them to you?
A. Yes, ma’am, he did.
Q. So kind of like you enlisted other people to help you, he
enlisted you to help him?
A. That’s correct.
Q. From looking at the lifts that Detective Costner provided
you, were any of them of value to be able to compare to a known
sample?
A. No, they were not.
Q. Now I am going to draw your attention to May 6th of 2008.
Did you attend the autopsy of the victim, Irina Yarmolenko?
A. Yes, I did.
Q. Where was it conducted?
A. The morgue at Gaston Memorial Hospital.
Q. Who else was present during that autopsy?
A. I had Detective Terry and medical examiner Carol Pinckard
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and the pathologist Dr. Nguyen, two of his assistants, E. Smith
and A. Leary.

Q. Now what, if anything, did you observe about the victim
during that autopsy?
A. I observed a black rope and a blue nylon like ribbon type
material around the victim’s neck.
Q. So those were the only two items you observed around her
neck at that point?
A. At that point, yes, ma’am.
Q. Now prior to that at the scene you had the opportunity to
observe the victim?
A. Yes, ma’am.
Q. And was there a third ligature on the victim at that point
back at the scene?
A. There was.
Q. But by the time you got to the autopsy, by the time you
arrived at the autopsy, that particular item had already been
removed?
A. I have on here that the seal on the bag was removed at
10:32. I believe it might have still been there. I don’t have
any notes of it. There was other tasks that I was doing during
that point and I don’t know at what point it was removed from
her.
QOkay, and I just want to - for clarification purposes for
..
the jury, when you say the seal on the bag was removed, you are

Workman - Direct/Hamlin - 228

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speaking of the bag that was actually on the victim?

A. That’s correct.
Q. So you were present during the entire autopsy?
A. That’s correct.
Q. But you were involved in other things and you weren’t
perhaps present when that bungee cord was removed?
A. That’s correct.
Q. So what you recall seeing is the black cord and the blue
ribbon?
A. That’s right.
Q. Now these items, the black cord, the blue ribbon, and the
bungee cord, were those items collected from the autopsy?
A. Yes, they were.
Q. Okay, and were they eventually provided to you and then of
course then provided to Detective Terry?
A. Yes, they were.
Q. And also the same with the blood sample of the victim. Was
that provided to you and then provided to Detective Terry?
A. Yes, ma’am.
Q. Now at some point - well, actually, let me draw your
attention to July 10th of 2008. On that particular day did you go
to the Belmont Police Department to further assist in the
investigation of Irina Yarmolenko’s death?
A. I did.
Q. What did you do?
Workman - Direct/Hamlin - 229

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A. I arrived at the Belmont Police Department at 11:00 in the
morning. I was requested to attempt to collect any type of DNA
samples that may be on or inside the vehicle.
Q. And, of course, this was after you were unable to get any
fingerprints?
A. Yes.
Q. When you arrived where was the car located?
A. It was located in an enclosed garage behind the Belmont
Police Department.
Q. And this is the same car that had been located next to the
victim back on May 5, 2008?
A. That’s correct.
Q. And do you recall seeing the crime scene tape on this
particular car?
A. I do.
Q. And that crime scene, is that like that red tape that seals
up the car?
A. Yes, it is.
Q. Now were you the actual crime scene officer that collected
these swabbings for DNA purposes?
A. I am.
Q. And then after you collected these particular swabs, what
did you do with them?
A. After collecting them, the procedure for doing so is I have
to allow them to air dry. After they air dry I place two swabs
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in a cardboard box. Each collection consists of two swabs. They
are both placed together in separate cardboard boxes, two in each
box from the areas where they were collected.

Q. So when you are swabbing a particular area of the car, you
swab with two dry swabs or a wet swab and a dry swab?
A. A wet swab first and follow it with a dry swab.
Q. Okay, and then you allow it to dry, air dry?
A. Correct.
Q. At that point is anything touching these swabs or anything?
A. No, it is not.
Q. Okay, and you are wearing gloves the entire time?
A. Correct.
Q. And then you take those two swabs from the same area and put
them in what?
A. In a white cardboard box that is marked with the information
from the case. They are placed in the cardboard box and both
ends of the box are closed.
Q. And at that point after you did that on each one of the
swabs that you took from the car, did you then provide those
swabs to Detective Terry of the Mount Holly Police Department?
A. I did.
Q. Now how many swabs did you take from the car? Do you
recall?
A. Twenty-two pair so forty-four swabs total.
Q. So twenty-two different locations on the car?
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A. That’s correct.
Q. And then one wet and one dry swab for each of those
locations?
A.
Correct.
MS. HAMLIN: May I approach?
THE COURT: Yes.
Q. I approach and show you what has previously been marked as
State’s Exhibit 57, 58, 59, 60, 61. Now these particular items,
State’s Exhibit 57, 58, 59,, 60 and 61, have already been
identified by Detective Terry and they have actually been opened
up. If I can just have you look at each one of those and
actually peek into the envelope, to the contents within, without
actually removing the items from the envelope.
A. Okay.
Q. Now I am going to draw your attention to State’s Exhibit 57.
Have you had the opportunity to look inside that, the contents of
that?
A. Yes, I did.
Q. Okay. What is that?
A. Inside the white envelope is a white cardboard box that has
my handwriting on it.
Q. Okay, and what is inside that white cardboard box?
A. Two cotton swabs.
Q. And do you know, based on the markings and everything on
that box, where the two cotton swabs - were those swabbings from
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the car?

A. I have indicated on the side of the box, “Pillar above
driver’s side rear door.”
Q. So State’s Exhibit 57 are two swabbings from the pillar A.
Above driver’s side rear door.
Q. Okay, and I am not a car person. What do you mean by pillar
above the driver’s side rear door?
A. A sedan vehicle has three pillars, which is A, B and C,
sometimes the A pillar being the one at the windshield, the B
pillar being the one between the two doors and C pillar being the
one behind the back door.
Q. I show you State’s Exhibit 19 marked and identified. Can
you tell on that picture where this pillar is where you took the
swabbing?
A. Yes, I can.
Q. And where is that?
A. It would be in this area up here.
Q. Do you have a pen on you?
A. I do.
Q. And if you could just mark there where you took that
particular swab.
A. (Witness complies with request)
Q. So the swabbing in that one came - it is kind of towards the
back?
A. Right.
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Q. And it is behind the driver’s seat in the rear area up top
here?
A. Correct.
Q. And if I could draw your attention to - and that’s of course
the swab that you took and you put in that box and you provided
it to Detective Terry?
A. Correct.
Q. I draw your attention to State’s Exhibit 58. Do you
recognize that?
A. Yes, I do.
Q. Okay. What is State’s Exhibit 58?
A. It is again a white cardboard box that contains two swabs
in it.
Q. And where are those swabs from?
A. Indicated on this box, “Pillar above driver’s side rear
door,” also.
Q. Okay. So you took two separate locations in that same
spot?
. A. Correct.

Q. I draw your attention to State’s Exhibit 59. Do you
recognize that?
A. Yes, I do.
Q. What is it?
A. Again it is a white cardboard box that contains two cotton
swabs.
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Q. And where does the box indicate that those two cotton swabs
came from?
A. Front passenger door arm rest.
Q. Now what do you mean, front passenger door armrest?
A. The armrest inside the vehicle on the front passenger door.
Q. So the inside of the vehicle?
A. That’s correct.
Q. Now there is the armrest that is in between the two seats.
Was this the armrest that was actually on the inside of the car
on the driver’s side door?
A. Passenger door.
Q. Passenger door. I’m sorry.
A. Correct.
Q. This is State’s Exhibit 59.
A. That’s correct.
Q. Okay. Do you recognize that?
A. Yes, I do.
Q. What is State’s Exhibit 59?
A. That is the one I just testified to.
Q. I don’t have my numbers in front of me right now. Moving on
to State’s Exhibit 60, do you recognize that?
A. Yes, I do.
QQ.. What is that?
A. It is another white cardboard box containing two cotton
swabs and marked on this box is “Seat belt button passenger side
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back seat.”

Q. So that same back seat behind the driver’s side?
A. Behind the passenger side.
Q. Behind the passenger side. Okay. You went ahead - you were
the officer that took that swab and put it in that box along with
the other State’s Exhibits 57, 58 and 59, collected them, sealed
them, and then ? Detective Terry?
A. That’s correct.
Q. I draw your attention to State’s Exhibit 61. Do you
recognize State’s Exhibit 61?
A. I do.
Q. What is that?
A. It is a white cardboard box containing two cotton swabs and
indicated - reading on this it says “Interior side front
passenger door glass.”
Q. Interior side front passenger door glass?
A. Correct.
Q. Okay. So not the driver’s side but the front passenger?
A. Correct.
Q. And that door glass, on the outside or on the inside?
A. Inside, interior side, the inside of the glass.
Q. So that is the swabbing you took off the inside of the car?
A. That’s correct.
Q. And is that also the glass that is right above that arm rest
where you also took a swab?
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A. That’s correct.
Q. Okay. So both on that same side?
A. Yes, ma’am.
Q. And you also packed that up and sealed it and gave it to
Detective Terry for security purposes?
A. Yes, ma’am.
Q. Nothing further.
MR. PHILLIPS: Thank you, Your Honor.
CROSS EXAMINATION BY MR. PHILLIPS:

Q. Detective Workman, did you have a crime scene log out there
that day, May 5, 2008?
A. I did not, no, sir.
Q. Who was in charge of the crime scene log?
A. I don’t remember.
Q. Did you ever see one?
A. No, sir, I did not.
Q. What is a crime scene log?
A. It is a chronological order of who comes in and out of the
crime scene, their name, what department they may be with and
what times they came in and out.
Q. And what’s the purpose of having that?
A. To keep a running tally of who all was on the scene.
Q. Okay, and do you know how many people got to the scene
before you did?
A. No, sir, I don’t.
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Q. Do you know how many people touched the car before you did?
A. No, sir, I don’t.
Q. Now DNA, you testified just a moment ago - Ms. Hamlin asked
you - the DNA evidence is more sensitive than fingerprint
analysis possibly?
A. I don’t know if it is more sensitive. It’s probably just as
accurate.
Q. Okay. Fingerprint analysis does not tell you when that
fingerprint was made, does it?
A. No, sir, it does not.
Q. DNA analysis does not tell you when the touch was made?
A. No, sir, it doesn’t.
Q. So it could be there for a long period of time, couldn’t it?
A. Yes, it could.
Q. Now when you were on the scene and as part of your duties,
did you look for any type of hair fibers in the vehicle?
A. No, sir, I did not.
Q. Did you see any hair fibers in the vehicle?
A. No, sir. I don’t recall any.
Q. Okay, and you can check hair fibers for DNA, can you not?
A. I believe you can, yes, sir.
Q. Okay, but you didn’t collect any, did you?
A. No, sir.
Q. And all the fingerprint or latent fingerprint collection or
lifts that you made, you said that they were of no use, no value?
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A. That’s correct.
Q. Except one?
A. Slight value.
Q. A slight value? And you had no comparison?
A. That’s correct.
Q. Are you aware of any police officers touching the vehicle
before you got there?
A. Not that I have seen. I don’t know what happened before I
got there.
Q. Did you ask any of them?
A. No, sir, I didn’t.
Q. Do you know how long that vehicle had been there at the
river?
A. No, sir, I don’t.
Q. Did anyone ever tell you how long it had been there?
A. My recollection is the call came in I believe somewhere
around lunchtime, but I don’t know the exact time or how long
before I arrived.
Q. Okay, but it could have been there before the call got in,
came in, correct?
A. Yes, sir.
th

Q. And later on on July 10 when you did your DNA swabbings,
you did those at the Belmont Police Department?
A. That’s correct.
Q. And did you open any of the doors when you did your
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swabbings, the car doors?

A. Yes, sir.
Q. You were wearing gloves?
A. Yes, sir.
Q. Were the doors locked at all, if you recall?
A. Not that I recall.
Q. When you took photographs down by the river, were they
locked?
A. I didn’t take photographs at the river.
Q. Were you there at the river to see the car?
A. Yes, sir.
Q. Did you see if the doors were locked?
A. The two driver side doors were open when I arrived and I
believe the two right side doors were unlocked.
Q. Okay, and did it have automatic locks if you know?
A. I don’t recall.
Q. Do you recall if that car was a straight drive or an
automatic?
A. I don’t recall that, either.
Q. And when you arrived did you see any keys in the ignition?
A. No, sir.
Q. Did you take any fingerprints of the ignition switch?
A. No, sir.
th

Q. On July 10 did you swab that area for DNA, the ignition
switch?
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A. No, sir.
Q. How about the gear shift knob?
A. No, sir.
Q. Did you take any swabbings of the steering wheel?
A. No, sir.
Q. All right. Let me take you back to the scene. When you
saw Ms. Yarmolenko there, were her hands bound in any way? Were
they tied?
A. No, sir.
Q. Were her feet bound in any way?
A. Not that I recall. I haven’t noted that they were.
Q. Okay. Were the keys found inside of the car?
A. No, sir.
Q. Did anyone ever retrieve the keys, if you know, to the
vehicle?
A. There was a set of keys that were found outside the
vehicle off to the driver’s side real corner. I don’t know if
the actual vehicle keys were on that set of keys or not.
Q. Did you try to take any prints off the keys?
A. No, sir, I didn’t.
Q. Of the thirteen prints that you took out there on the scene
on May 5, 2008 did you find Mark Carver’s fingerprints anywhere
out there?
A. No, sir.
Q. And at some point the door of the vehicle was shut, was it
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not, the back door?

A. When I was there it was open.
Q. If someone shut it, would you know that before or after you
were there?
A. The only thing I could tell you is when I seen the car on
th

July 10 , the doors were shut.

Q. And how long were you with the car? For how long? An
estimate, if you know.
A. At which time?
Q. At the river. Excuse me.
A. At the river? I cleared at 6:00, 6:00 P.M.
Q. So you were there for a long time, were you not?
A. Yes, sir.
Q. But you didn’t do any DNA swabbings there on the scene at
the river?
A. No, sir, I didn’t.
th

Q. And it was some two months later, July 10 ?
A.
Correct.
MR. PHILLIPS: No further questions, Your Honor.
MS. HAMLIN: I just have a clarification question, Your
Honor.
REDIRECT EXAMINATION BY MS. HAMLIN:

Q. Mr. Phillips asked you if you saw any of Mark Carver’s
fingerprints at the scene on the car.
A. Correct.
Workman - Redirect/Hamlin - 242

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Q. You weren’t actually able - you saw fingerprints on the car?
A. Correct.
Q. Okay, but when you lifted them you weren’t actually able
to compare them to anybody?
A. That’s correct.
Q. So you have no idea whose fingerprints those were on the
car?
A. That’s correct.
Q.
Nothing further.
THE COURT: Anything?
MR. PHILLIPS: One more question, Your Honor.
RECROSS EXAMINATION BY MR. PHILLIPS:

Q. Did you do any nail scrapings from the victim?
A. Nail scrapings were conducted by Medical Examiner Pinckard.
Q. Were you there when that took place?
A. Yes, sir. That was taking place during the autopsy.
Q. You observed the body during the autopsy?
A. Yes, sir.
Q.
Nothing further.
MS. HAMLIN: Nothing further.
THE COURT: Thank you, sir. You can stand down.
MS. HAMLIN: I ask that this witness be released from
his subpoena, Your Honor.
MR. PHILLIPS: No objection.
THE COURT: Very well. Thank you, sir. Members of the

243

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jury, remember you are not to discuss the case with anyone or
have any contact or communication with any participant about
anything. Don’t read or listen to any media accounts. Please do
not visit the scene or make any type of independent investigation
or research. We will resume at 9:30 and again the sheriff will
tell you where he needs you and at what time so that we may
resume. Thank you.

(Whereupon, the jury left the courtroom and the Court
thereafter took an evening recess at 4:10 P.M.)

244

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF GASTON 08 CRS 68290

STATE OF NORTH CAROLINA, )
)
VS )
)
MARK BRADLEY CARVER, )
)
Defendant. )
)

TRANSCRIPT OF TRIAL

MARCH 17, 2011

PAGES 245 - 353

VOLUME IV OF V

MITZY BONDURANT
OFFICIAL COURT REPORTER
325 NORTH MARIETTA STREET, SUITE 4135
GASTONIA, NC 28052
(704) 852-3173

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I N D E X

STATE’S
WITNESSES DIRECT CROSS REDIRECT RECROSS

Dan Souther 247 257 262 263
Karen Winningham 263 291 299
Kristin Hughes 299 308
Dr. Chris Nguyen 310 325

E X H I B I T S

State’s
Exhibit # Marked Received

67-68 Photos of car 255 255

-247

March 17, 2011 at 9:30 A.M.
(The following proceedings were held in open court with

the defendant and all counsel present.)
THE COURT: Anything prior to summoning the jury?
MR. STETZER: Not from the State.
MR. RATCHFORD: Not from the defense, Your Honor.
THE COURT: Sheriff, have all the jurors returned?
BAILIFF: Yes, sir.
THE COURT: Would you return them to the courtroom,

please?
(Whereupon, the jury returned to the courtroom.)
THE COURT: Good morning.
JURY: Good morning.
THE COURT: And welcome back. What says the State of

North Carolina?

MS. HAMLIN: Your Honor, the State calls Trooper
Souther.
DANIEL SOUTHER, being first duly sworn, testified as follows
during DIRECT EXAMINATION BY MS. HAMLIN:

Q. State your name for the Court.
A. Daniel Edward Souther.
Q. And it is spelled S-o-u-t-h-e-r?
A. That’s correct.
Q. How are you employed?
A. I am a member of the North Carolina State Highway Patrol.
Souther - Direct/Hamlin - 247

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Q. How long have you worked for the North Carolina State
Highway Patrol?
A. Twenty years this month.
Q. What are your specific duties with the North Carolina
State Highway Patrol?
A. I am assigned to the collision reconstruction unit and we
handle more serious crashes, typically involving a fatality.
Q. And how long have you been in that particular division, the
collision reconstruction division?
A. I have been a reconstructionist for fourteen years but I
have been a member of the collision reconstruction unit since its
inception which was February of 2003. So eight years.
Q. Tell the jury about the type of training you have had in
collision reconstruction.
A. I have approximately thirteen hundred hours of specialized
training in the field of collision reconstruction. You want me
to read my Q.
If you just want to go ahead and start with - yes, go ahead.
A. In 1996 I attended three different classes. Each were
eighty hours in length. The first one, at scene collision
investigation, then advanced collision investigation again was an
eighty hour course, and then traffic collision reconstruction
which was another eighty hour course. In 1998 I attended
motorcycle collision reconstruction school. Also in 1998 I
attended computer collision diagraming school which was a forty
Souther - Direct/Hamlin - 248

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hour course. Also in 1998 I attended a forty hour course on
commercial motor vehicle collision investigation and then a forty
hour course on commercial motor vehicle collision reconstruction.
In 1998 I also attended a forty hour course for pedestrian
bicycle collision reconstruction. In 1998 I also attended a
forty hour course on interviews and interrogations. In 1998 I
also attended a laser measuring systems certification which we
use to map collision scenes like surveying type of equipment. I
also attended in 1999 a tire damage analysis course put on by
Michelin. In 2001 I attended the total station measuring systems
training which is also a surveying type course. It was a thirty-
two hour course.

Q. Trooper, I am just going to stop you there since we still
have about ten years to go on your training. In total how many
hours did you indicate you had?
A. Approximately thirteen hundred hours of specialized
training.
Q. And that is all in collision reconstruction?
A. Yes.
Q. And you have also had other training, too?
A. Yes.
Q. With the State Highway Patrol?
A. Yes, I have had a lot of training over the years.
Q. What is ACTAR?
A. ACTAR is the Accreditation Commission for Traffic Accident
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Reconstructionists. I successfully completed the ACTAR exam last
July. It is an eight hour long exam that you have to
successfully complete to receive that level of Accreditation.

Q. Now how many people are certified as an ACTAR
reconstructionist in our state?
A. Twenty-two.
Q. And you are one of them?
A. Yes, I am.
Q. Now tell me about the type of experience you have had in
accident reconstruction.
A. I have investigated well over two thousand crashes in the
twenty years that I have been a trooper. I have reconstructed
approximately 144 of those crashes where I was the lead
reconstructionist on the case. I do work with a team of three
other individuals. We cover the western part of the state,
everything west of I-77. In working with that team I have
assisted in more reconstructions than that, but I have been the
team leader for 144.
Q. Have you ever testified in court as an expert in collision
reconstruction?
A.
Yes, I have, six times.
MS. HAMLIN: Your Honor, at this point we would tender
this individual as an expert in collision reconstruction.
MR. PHILLIPS: No objection, Your Honor.
THE COURT: I’m sorry?

Souther - Direct/Hamlin - 250

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MR. PHILLIPS: No objection.
THE COURT: All right. Thank you. Very well.

Q. Have you ever had any training in something called crash
data retrieval?
A. Yes, I have.
Q. And what is crash data retrieval?
A. It is a device or system that was designed to retrieve or
download data that is recorded in the air bag control module
which is also called the sensing diagnostic module. It is what
controls when the air bag comes out. It basically senses what we
call negative acceleration. When you are suddenly stopping
rapidly, the air bag control module wakes up and says do I need
to deploy the air bag. If you hit a pot hole, for example, it
will say do I need to deploy the air bag. No, it was a false
alarm because it is looking at how fast am I slowing down right
now and then as time passes are we continuing to slow down faster
or am I - is it not getting worse, it’s actually getting better.
Then it knows I don’t need to deploy the air bag.
Q. So crash data retrieval is the device used to basically read
the air bag deployment computer that is in the car?
A. That’s correct.
Q. Okay. So you have an air bag control - I think you called
it a control module - in the car?
A. Yes.
Q. Okay, and that’s what determines whether or not an air bag
Souther - Direct/Hamlin - 251

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needs to be deployed?

A. Right. It basically records two types of events, a
deployment event, and that is of course when the air bag deploys,
and then it also records a non-deployment event and that’s again
like that pot hole that you strike. It wakes up. It records the
data so that we are able to - we never look at that information
without comparing it to the physical evidence, but it records
that information for us.
Q. Okay, and then you use the crash data retrieval to retrieve
the information from that air bag module?
A. That’s correct.
Q. Okay. Now is there a slang term used to describe this air
bag module located inside the car?
A. Well, some people call it the black box. It is not black
but that is what it is sometimes referred to as.
Q. Now the black box - I am going to go ahead and just call
it the black box.
A. Okay.
Q. Also known as the air bag control module within the car.
Does it record what’s going on if the car is turned off?
A. No. Based on my training and experience it has to have
power going to it. It doesn’t have to have the engine running
but if the key is actually turned on where your dash lights come
on, your radio might be playing, that’s all the power that it
needs but it has to have that to record an event.
Souther - Direct/Hamlin - 252

-253

Q. Now when you say event, you talked a little bit about it.
What type of things or what type of events does this black box
record?
A. Again it is a non-deployment event which is something you
may hit the curb and it will say, whoa, do I need to deploy? No.
False alarm. Then the deployment event when it senses, hey, I am
slowing down way too quickly. Typically a car can stay at - the
maximum - about fifteen miles per hour per second. So if you are
going, say, sixty-five and you see that trooper and the radar is
going off and you slam on your brakes, you can only get it down
to about fifty in that one second if you are lucky. But if the
car senses that, hey, I am slowing down twenty-five miles per
hour in milliseconds it knows that a crash is taking place, and
you have seen it probably on TV when the crash dummy starts to
move forward. That air bag is already coming out. So that air
bag control module is making decisions based on the criteria that
the manufacturer put in there to protect the occupants so that
they don’t hit the steering wheel or they don’t hit the dash or
the windshield.
Q. I am going to draw your attention back to the date of June
11th of 2008. Was your assistance requested in the investigation
involving the death of Irina Yarmolenko?
A. It was.
Q. What assistance was requested?
A. The Mount Holly Police Department contacted our unit and
Souther - Direct/Hamlin - 253

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asked us to download the air bag control module for the vehicle
involved in this case. It was, I believe, June 24th before I
could actually get down here due to our heavy case load and the
fact that the vehicle was in a secure storage lot.

Q. So did you eventually assist and go and observe this
particular Saturn car?
A. Yes. On June 24th I met with Detective Terry and went to the
Belmont Police Department’s secured storage lot.
Q. Okay, and is that where you saw the car?
A. Yes.
Q. And did you learn at that point that that Saturn car had
been found at the crime scene next to the deceased victim?
A. Yes, that’s correct.
Q. And you indicated that you observed it in a secured area?
A. Yes. Belmont Police Department has a fenced in lot and
that’s where it was.
Q. Now what, if any, at that point - what, if any, damage did
you observe to the vehicle?
A. It had pretty extensive damage to the front of the vehicle.
It was mainly concentrated at the front center.
Q. Were photographs taken?
A. Yes. While I was doing the download my partner, Trooper
Dan Harmon, was actually photographing the vehicle as well as
what I was doing.
MS. HAMLIN: May I approach?

Souther - Direct/Hamlin - 254

-255

THE COURT: Yes.

Q. Trooper, I am going to show you what has been marked State’s
Exhibit 67 and 68, if you could just take a look at those items.
Do you recognize State’s Exhibits 67 and 68?
A. I do.
Q. What are those two things?
A. These are photographs that my partner, Trooper Harmon, took
while I was doing the download.
Q. And do those particular photographs, State’s Exhibits 67 and
68, accurately depict how the Saturn car appeared while you were
examining it?
A. Yes, it does.
Q. Do they help illustrate your testimony?
A.
Yes, it does.
MS. HAMLIN: I offer into evidence State’s Exhibit 67
and 68.
THE COURT: Let them be received.

Q. Now drawing your attention back to the examination that you
were doing on this car involving the crash data retrieval, were
the air bags deployed on this car?
A. No, they were not.
Q. Did you retrieve the crash data from this Saturn vehicle?
A. Yes, I did.
Q. Did the data on that black box record events that could have
caused the amount of damage that you saw on that Saturn?
Souther - Direct/Hamlin - 255

-256

A. No. The event that was recorded did not reflect a
deployment event and it - there should have been a deployment
event for that amount of damage.
Q. So based on that amount of damage, the air bag should have
deployed?
A. Absolutely.
Q. But the air bags did not deploy?
A. Correct.
Q. And the black box indicates that there was no deployment
event?
A. That’s correct.
Q. How do you explain that?
A. Based on my training and experience, the only explanation is
that the vehicle was not on - that’s with key on - at the time
that the damage was made.
Q. So the vehicle was not turned on in any form?
A. No.
Q. The engine was not running when this particular damage
occurred to that Saturn vehicle?
A.
That’s correct.
MS. HAMLIN: At this point, Your Honor, I would just
ask that the pictures be published to the jury.

THE COURT: Very well.

(Whereupon, State’s Exhibits 67 and 68 were published

to the jury.)

Souther - Direct/Hamlin - 256

-257

MS. HAMLIN: Nothing further.
CROSS EXAMINATION BY MR. PHILLIPS:

Q. Is the damage to the vehicle consistent with hitting a
stump where it was located? Are you familiar with where it was
located?
A. Yes. The detective took me to the scene to look at the
stump.
Q. Okay. Was the damage consistent with where it was found?
A. Yes. The damage was low. If it had hit like, say, a
utility pole, you would have had more damage to the actual hood.
Q. Right.
A. There is some contact there on the hood but it is - it
typically would be higher and more intrusive.
Q. Okay, and this vehicle, what type of vehicle was it, if you
recall?
A. It is a 1998 Saturn, I believe.
Q. Okay, and do you recall how many miles it had on it?
A. To be honest with you, I don’t recall and I may have it in
my bag Q.
Would it be fair to say it probably had lots of miles on it,
if you recall?
A. Yes. Yes.
Q. And your training and experience is that the air bags should
deploy for that type of damage?
A. Yes. Yes.
Souther - Cross/Phillips - 257

-258

Q. If the car is running or the key switch is on; is that
correct?
A. That’s correct.
Q. Have you ever heard of an air bag not deploying in an
accident?
A. Yes, I have.
Q. And did you investigate whether or not the air bag was
working properly or can you do that?
A. Yes. Typically that is why they have that air bag control
module. Typically it will give us information and data. I
actually contacted Rick Ruth who is the leading expert in this
field. He was an engineer, electrical engineer, for Ford for
over thirty years. He helped design Ford’s air bag control
module. I showed him this entire case and he said that basically
he agreed that the air bag should have deployed, that there is
nothing in the air bag control module download to indicate that
there was a problem with the air bag. It recorded a non
deployment event based on the ignition cycles. Every time you
turn on the key it records that and I know that when I downloaded
the air bag control module I had to turn the key on, and so it
said that when I turned the key on it was 15,517 times that that
key had been turned on. You want me to continue?
Q. Well, I was going to ask you another question.
A. Okay.
Q. Can you tell in your investigation what time the last time
Souther - Cross/Phillips - 258

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that the ignition had turned on in the vehicle?

A. In this particular model - some of the newer models actually
give you seconds for every time the car is turned on, how long
that car was actually turned on, and it will give you the total
life that the car had actually ran. So in some cars you can. In
this one it gives me ignition cycles and I know that there was a
non-deployment event at 15,514 which was three ignition cycles
before my download.
Q. Okay, but it doesn’t give you a time, does it? It just
gives you the cycles on the ignition?
A. That’s correct.
Q. And also your investigation showed that a seat belt was
buckled?
A. In the non-deployment event again that could be hitting a
pothole or running over rough terrain. It would be something to
wake up the sensors or wake up the air bag control module.
Q. And there is nothing in your investigation at the time of
the event which caused the damage about who was driving the
vehicle?
A. Who was driving the vehicle at the time?
Q. Yes, sir.
A. Again it didn’t record the event where the damage was
actually caused so it is not giving any information. Of course
it doesn’t give me the driver.
Q. Right, and do you recall if this was an automatic vehicle or
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-260

a straight drive?

A. I believe it was a straight drive but I am not positive
about that. I don’t know if I have got that here in this
section. I would have to look at my photographs.
Q. Yes, sir. Will the black box tell whether or not anyone was
driving at the time of the collision?
A. At the time of the collision since the key was turned off,
that sensor is not recording anything. So I can’t tell you about
the actual crash that caused the damage. I know that when the
non-deployment event happened that somebody was in the seat and
that the seat belt was buckled.
Q. Excuse me. Go ahead.
A. I was just saying but it is two different events. The non-
deployment event, you know, again that is three ignition cycles
before. It could have hit a pot hole and at that time somebody
was in the seat driving the car. The seat belt was buckled. The
time the damage was made the sensor is not working.
Q. Does the black box tell you when the ignition is on whether
or not a seat belt is fastened in the passenger seat?
A. Some models do. In this model it is an older model so I
don’t think so but I can’t tell you for sure.
Q. How about in the back seat?
A. No. In the back seat - maybe some of the newer ones do.
The last Dodge, it was a new Dodge, and it gave me thirty-eight
pages of data so it gave us everything, but again this is an
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older vehicle so the data is limited.

Q. And one more question. Does it tell you when the last
time that the ignition was on? I may have asked you that
already, but does it tell you that in the black box?
A. As far as the last time the key was turned?
Q. Yes, sir.
A. It tells me not a time. It just tells me the ignition
cycles so I - in speaking with Detective Terry, he told me that
he is the only one that had put the key in the vehicle and turned
it on one time to position the vehicle when they got it to the
secured storage lot at the Belmont Police Department. So that
would have been 15,516 and the event was 15,514. I just can’t
explain the 15,515. That’s - you know, that’s the question.
Q. So to answer the question, the black box doesn’t give you
times. It just gives you a A.
Not in this unit. Some of them do but not in this unit.
th

Q. Okay, and when you were down there on June 24 to do your
examination, did you have to get inside the vehicle?
A. Yes. The photograph that - I believe the first exhibit that
shows me basically kind of kneeling with the car door open and I
have got my computer sitting in the driver’s seat and you
basically plug up to the diagnostic link. Sometimes when you
take your car in to get it serviced or get worked on you will see
the technician plug up to - right up underneath the driver’s
steering wheel there is a port. It is called the diagnostic link
Souther - Cross/Phillips - 261

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connector. He will plug right up to that and that’s where they
plug up to as long as there is not a lot of damage. If there is
a lot of damage then I may have to go directly to the box but in
this case I did not.

Q. Okay, and on this occasion when you were examining the
vehicle, were you wearing gloves?
A. No. I was told that the vehicle had already been processed
for DNA so I did not wear gloves. It was like about a month and
a half, I guess, after the incident took place so it was my
understanding that the vehicle had already been processed.
Q. You were not aware that it was processed for DNA in July?
A. I was not aware of that. I was told that the vehicle had
been processed. So, no.
Q. You were not told it was processed again for DNA in July
after you examined the vehicle?
A. I was not told that.
Q. Okay. No further questions.
REDIRECT EXAMINATION BY MS. HAMLIN:
Q. So based on your training and experience this vehicle was
turned off, was not on, when that damage occurred?
A. Yes, that’s correct. It had to be. It had to be turned
off.
Q. Turned off?
A. Yes.
Q. Nothing further.
Souther - Redirect/Hamlin - 262

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THE COURT: Anything further?
RECROSS EXAMINATION BY MR. PHILLIPS:

Q. One question. There is no way you know what time the damage
occurred to the vehicle?
A. As far as - no, I can’t tell you the time.
Q. Right. No further questions.
A.
I just - okay. I’m sorry.
THE COURT: Thank you.
MS. HAMLIN: Your Honor, we would ask that the trooper
be released.
He is actually in training right now.
THE COURT: All right.
MR. PHILLIPS: No objection, Your Honor.

A. Thank you, sir.
KAREN WINNINGHAM, being first duly sworn, testified as follows
during DIRECT EXAMINATION BY MR. STETZER:
Q. State your name for the court.
A. Karen Winningham.
Q. How are you employed?
A. I am a forensic scientist with the North Carolina State
Bureau of Investigation.
Q. And how long have you been a forensic scientist with the
State Bureau of Investigation?
A. Since 2003.
Q. What do you do there?
A. Well, normally I receive items of evidence such as blood,
Winningham - Direct/Stetzer - 263

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semen or saliva. I analyze the evidence using forensic DNA
analysis. I write up a report based on my findings and on
occasion testify to my findings in court.

Q. Please tell us about your educational background that
qualifies you for this.
A. I have a B.S. degree in biochemistry from North Carolina
State University and a M.S. degree in molecular biology from East
Carolina University.
Q. M.S. being a master’s degree?
A. Yes.
Q. Thank you, ma’am, and what special training have you had,
specifically in forensic biology other than your two degrees?
A. In the laboratory I worked approximately 150 samples that
you routinely find in forensic case court that I had to take a
written test on as well as a competency and proficiency test. I
worked thirty cases under the close supervision of a senior DNA
analyst until such time as I was deemed competent to work cases
on my own.
Q. And when did that occur?
A. That would have been in 2004.
Q. How many times have you conducted DNA analysis in actual
cases, past these competency cases but in real cases?
A. Well over five hundred cases.
Q. Have you had occasion to testify about your results before
today?
Winningham - Direct/Stetzer - 264

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A. Yes, I have.
Q. And how many times have you done that?
A. Sixteen, seventeen times.
Q. In those cases were you accepted by the court as an expert
in DNA analysis or forensic biology?
A. Yes, I was.
Q. How many times were you accepted as an expert?
A.
All those times.
MR. STETZER: I would tender Ms. Winningham as an expert
in forensic biology and DNA analysis.
THE COURT: Voir dire?
MR. RATCHFORD: No objection.
THE COURT: Very well.

Q. Ms. Winningham, can you tell us - give us sort of an
overview of what DNA is?
A. DNA is a chemical found in various cells throughout the
human body. It is generally referred to as our genetic
blueprint, our outline, because it determines our own unique
individual characteristics. The majority of human DNA is very
similar but there is a small percentage that varies a great deal
from person to person and it is these regions or areas of the DNA
that is used in forensic DNA analysis to generate a person’s
specific DNA profile.
Q. You said a person has a specific DNA profile. How specific
is a DNA profile to each person?
Winningham - Direct/Stetzer - 265

-266

A. Very specific. Only identical siblings would have the same
DNA profile.
Q. So other than that, every single person on the planet has a
different DNA profile?
A. Yes.
Q. And you have said that the majority of our DNA is similar
but there are regions that have a high degree of uniqueness. Am
I saying that right?
A. Yes.
Q. And when you are doing analysis to determine identification
of who may left the sample, do you look in the similar areas or
the unique areas?
A. You are looking in the unique areas, the polymorphic areas,
those that vary a great deal.
Q. And what are those areas called?
A. They are called short tandem repeats or STR’s.
Q. What can you get a DNA profile from? What sort of material?
A. Any type of nucleated cell and those are found in blood. It
is your white blood cells. Skin cells, semen, saliva. I think I
said skin cells.
Q. You did, and three of the four things you said were liquids.
A. Yes.
Q. And one is skin cells. When we are talking about skin
cells, what sort of DNA technique are we talking about?
A. We are talking about the same thing.
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Q. What is touch DNA? If I hear that phrase, what is that?
A. Touch DNA refers to skin cells.
Q. And is it different from other DNA?
A. No, it’s not.
Q. Is it just a different type of sample?
A. Yes. Well, it is a nucleated cell.
Q. So you are finding nucleated cells in skin cells as opposed
to in fluids? Am I getting that right?
A. Yes.
Q. When you analyze an item for DNA, if I have touched it
will my DNA be on it?
A. Yes, possibly.
Q. Possibly or definitely?
A. Possibly.
Q. I have a pen in my hand. Can you tell this jury whether or
not if you were to analyze this pen right now you would find my
DNA on it?
A. More than likely I would.
Q. Are there times when you wouldn’t?
A. Yes.
Q. Are you familiar with experiments that have been done in the
SBI lab where they have done what I have just talked about, watch
someone handle an object and test it for DNA for results and
found no DNA there?
A. Yes.
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Q. Can you explain that to us? We are new to this.
A.
Skin cells typically MR.
RATCHFORD: Objection, Your Honor. May we approach
on this?
(Conference with counsel at the bench)
THE COURT: Overruled.

Q. You can answer that question if you recall the question.
Otherwise, I have to repeat it for you.
A. Repeat the question, please.
Q. Yes, ma’am. I asked if you were familiar with experiments
at your lab where a person has handled an item in the presence of
an analyst and it was tested and no skin cells and no DNA was
found on the item, and, as I said, we are new to this. Can you
explain that to us?
A. Touch DNA usually - skin cells you don’t really deposit a
lot on a particular item. So you have a small known sample and I’m
sorry. What?
Q. I am asking you with that experiment where, you know, if you
watched me handle this pen and found no DNA, can you explain what
sort of things would contribute to that?
A. The sample was possibly wiped off. There wasn’t much of the
sample deposited and so with our techniques it might not have
been detected. You can have a degraded DNA sample where the DNA
is actually broken down and you still possibly can’t detect it
with our techniques.
Winningham - Direct/Stetzer - 268

-269

Q. Is it fair to say there are a number of reasons that would
contribute to that?
A. Yes.
Q. Would it be fair to say that is not uncommon in your line of
work?
A. That’s not uncommon.
Q. Still talking about my pen, what if I was to drop my pen
into this cup of water. Could that affect your ability to find
DNA cells, skin cells on it?
A. Yes.
Q. And that would be one of the things you said of the many
things that could affect it?
A. Yes.
Q. I am handing you State’s 51. Will you take a look at that
for me, please? Can you tell me what that is?
A. It is a sample identified as a blood stain from Irina
Yarmolenko.
Q. Have you handled that before?
A. Yes, I have.
Q. How do you know that?
A. It has my initials and date.
Q. And what, if anything, were you asked to do with that?
A. To develop a DNA profile.
Q. From the blood sample of Irina Yarmolenko?
A. Yes.
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Q. Were you able to do that?
A. Yes, I was.
Q. I am going to leave this up here. State’s Exhibits
Number 63 and 64 which were contained in item number 62, I will
hand you the whole collection of things. Take a look at all
three of those items for me. Are you familiar with them?
A. Yes.
Q. What were those three items I just handed you?
A. These are buccal swabs also referred to as cheek swabbings,
one identified as coming from Q.
I handed you the third envelope as well.
A. One identified as coming from Mark Carver and the other from
Neal Cassada.
Q. Okay. What were you asked to do with those two items?
A. To develop a DNA profile.
Q. And were you able to do that from the cheek swabs?
A. Yes, I was.
Q. I am just going to put these over to the side. I show you
what has been previously admitted as State’s Exhibits Number 57,
58, 59, 60 and 61. Will you take a look at those for me, please?
Have you looked at all of them?
A. Yes.
Q. What were those that I just handed you?
A. These are swabs identified as coming from the pillar above
the driver’s side rear door, another swab from the pillar above
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driver’s side rear door, a swab from the interior side front
passenger door glass, a swab from the front passenger door arm
rest, and a swab from the seat belt button passenger side back
seat.

Q. Thank you. What were you asked to do with those five items?
A. To develop a DNA profile and compare it to known standards.
Q. So would these be called known standards or forensic
standards?
A. Those would be forensic evidence standards. These samples
here would be the known standards.
Q. So you would compare the forensic standards to the known
standards you know?
A. Yes.
Q. And you had other known standards as well throughout this
case?
A. Throughout the case, yes.
Q. Let’s start with item number 57 which is SBI lab number item
34-2. Were you able to develop a DNA profile from that forensic
standard?
A. Yes, I was.
Q. And when you developed that A.
From this forensic evidence.
Q. From that forensic evidence. My apologies. So from the
swabbing which is 34-2 which is from where?
A. From the pillar above the driver’s side rear door.
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Q. The pillar above the driver’s side rear door. You were able
to develop a profile from that piece of evidence?
A. Yes.
Q. And when you compared it to your known standards, what did
you find?
A. Well, I generated a partial profile on that piece of
evidence and I found that it was consistent with a mixture,
meaning that there is more than one contributor, and the
predominant profile matched to the DNA profile from Mark Carver.
Q. So you have a partial profile that matches to Mark Carver?
A. Predominant profile.
Q. Predominant profile. Tell us what that means, please.
A. When you have a mixture of two people you can determine
predominance based on our validation studies and also based on
your training and what that means is the predominant profile is
the DNA that is there in greater concentration.
Q. Thank you, ma’am. You also said - or tell us what you can
tell us, if anything, about whether or not the DNA profile from
the known contribution of Irina Yarmolenko contributed to that
profile, if you know.
A. I determined that no conclusion could be rendered as to the
contribution of the DNA profile from Irina Yarmolenko.
Q. Does that mean you don’t know either way whether the other
stuff you found in the mixture could have belonged to her or
somebody else?
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A. Correct. There wasn’t enough information obtained from the
minor contributor to determine who it possibly came from.
Q. But there was enough information on the predominant profile,
the bigger profile?
A. Yes.
Q. Okay, and after you determined that it matched the DNA of
Mark Carver, did you create any kind of a statistical analysis
to tell us about that match?
A. Statistical analysis, yes, about the partial DNA profile
from the evidence.
Q. Can you tell us about that, please?
A. The state has a data base made up of four different racial
groups, black, white, Hispanic and Lumbee Indian, that it uses to
determine the odds that a particular profile would be found by a
random chance in the general population. So I calculated the
odds that that partial predominant profile would be found by
random in the general population.
Q. And what did you come up after that calculation, ma’am?
A. That a predominant partial DNA profile obtained from the
swabbing from the pillar above the driver’s side rear door is
approximately 126 million times more likely to be observed from
Mark Carver than if it came from another unrelated individual in
the North Carolina Caucasian population.
Q. Do you generate numbers for all the populations?
A. Yes, I did.
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Q. Why don’t you just tell us those numbers?
A. 389 million times more likely to be observed from Mark
Carver than if it came from another unrelated individual in the
North Carolina black population, 302 million times more likely to
be observed if it came from Mark Carver than from an unrelated
individual in the North Carolina Lumbee Indian population, and
794 million times more likely to be observed if it came from Mark
Carver than if it came from another unrelated individual in the
North Carolina Hispanic population.
Q. Thank you, ma’am. I want to talk to you next about State’s
Exhibit Number 61 which is SBI lab number 34-9. Are you familiar
with SBI lab number 34-9?
A. Yes.
Q. What is that?
A. The swab from the interior side of the front passenger door
glass.
Q. Interior side front passenger door glass, and that is
another forensic swab?
A. Yes.
Q. What were you asked to do with that forensic swab from the
interior side front passenger door glass?
A. Develop a DNA profile and compare it to the standards.
Q. On that swab were you able to develop a DNA profile?
A. Yes, I was.
Q. Can you tell us about what you found in that swab?
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A. The partial DNA profile obtained from the swabbing from the
interior side of the front passenger door glass is consistent
with a mixture. Predominant profile matched the DNA profile from
Neal Cassada.
Q. So again we have a mixture with a predominant profile.
That’s what we had the last time, right?
A. Correct.
Q. And so the predominant profile was the biggest profile?
A. Right.
Q. Can you render a conclusion about the other DNA material in
the mixture, whether or not it belonged to Irina Yarmolenko?
A. No. No conclusion can be rendered as to the contribution
of the DNA profile from Irina Yarmolenko to the mixture.
Q. But you do have enough genetic information for a match to
Neal Cassada?
A. For a partial profile, yes, predominant profile.
Q. That matched Neal Cassada?
A. That matched Neal Cassada.
Q. Thank you, ma’am. Did you do the same sort of statistical
analysis based on population data as you did in the last sample
we just discussed?
A. Yes, I did.
Q. And what were the results of that?
A. The predominant partial DNA profile obtained from the
swabbing from the interior side of the front passenger door glass
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is approximately 680 million times more likely to be observed if
it came from Neal Cassada than if it came from another unrelated
individual in the North Carolina Caucasian population, 12.7
billion times more likely to be observed if it came from Neal
Cassada than if it came from another unrelated individual in the
North Carolina black population, 2.85 billion times more likely
to be observed if it came from Neal Cassada than if it came from
another unrelated individual in the North Carolina Lumbee Indian
population and 2.23 billion times more likely to be observed if
it came from Neal Cassada than if it came from another unrelated
individual in the North Carolina Hispanic population.

Q. Thank you, ma’am. Can I direct your attention back to item
number 34-2 for just a minute which was the first swab I handed
you which was the pillar above the driver’s side rear door? In
that one were you able to make a conclusion about the presence of
DNA from Neal Cassada? In that one you matched it to Mark
Carver. What did you learn, if anything, about Neal Cassada’s
DNA on that particular location?
A. Well, the original - the statements that the partial DNA
profile obtained from the swabbing of the pillar - I’m sorry.
Who are you asking?
Q. On 34-2.
A. 34-2.
Q. In that one you found a predominant profile that matched Mr.
Carver.
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A. Right.
Q. Were you able to exclude Mr. Cassada from that sample?
A. DNA profile from Neal Cassada was excluded as a contributor
to the mixture.
Q. Thank you. So it matched Carver, excluded Cassada?
A. Yes.
Q. And you can’t tell us about Ms. Yarmolenko?
A. Correct.
Q. Thank you. Let’s go back to the swab we have been talking
about which is item 34-9 that you just told us was a predominant
profile that matched Mr. Cassada. What opinion do you have, if
any, about the presence of DNA from Mr. Carver on that location?
A. The DNA profile from Mark Carver was excluded as a
contributor to the mixture.
Q. Thank you. So Cassada’s is present and Carver’s is not?
Am I accurate?
A. Yes.
Q. Thank you, and you have used the word excluded at my request
twice. What does that word mean?
A. Excluded means that the samples didn’t come from the same
source.
Q. Does excluded mean that I didn’t touch something?
A. No.
Q. Excluded means that you didn’t find something?
A. It means that the DNA was not detected.
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Q. Let’s turn now to State’s Exhibit 59 which is SBI item
number 34-10. Have you seen that item before?
A. Yes, I have.
Q. And what is that item?
A. A swabbing from the front passenger door arm rest.
Q. And what were you asked to do with that item?
A. Develop a DNA profile and compare it to known standards.
Q. And were you able to do that in this case?
A. Yes, I was.
Q. What were the results of that analysis?
A. The partial DNA profile obtained from the swabbing from the
front passenger door arm rest is consistent with the mixture.
The predominant profile matched the DNA profile from Neal
Cassada. The profiles from Mark Carver and Irina Yarmolenko were
excluded as contributors to the mixture.
Q. Thank you, ma’am, and you also in that found additional
alleles that couldn’t be accounted for by those standards. Am I
accurate with that?
A. Yes.
Q. With the additional alleles that couldn’t be accounted for,
is that something in touch DNA that is unusual?
A. With the alleles that could be accounted for is it unusual?
I don’t believe I understand your question.
Q. Okay. I’m sure I’ve asked it poorly. Let me ask it again.
In this one you had a DNA profile that matched Neal Cassada and
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you did not find DNA for Irina Yarmolenko or Mark Carver. Do I
have it right so far?

A. Yes.
Q. All right, and then you also said that there were additional
alleles present which couldn’t be accounted for by the standards
submitted?
A. Right.
Q. In a touch DNA case is that unusual?
A. No, it’s not.
Q. Is that common?
A. I would say it’s common.
Q. Have you seen that happen before?
A. Yes.
Q. Have you seen that happen often before?
A. Yes.
Q. Are you able to tell when those additional alleles were
deposited?
A. No, I’m not.
Q.
Could those have been from old DNA left from blood?
MR. RATCHFORD: Objection.
THE COURT: Sustained. “Could” includes a possibility.
Q. Based on your training and experience?
A.
I couldn’t say MR.
RATCHFORD: Objection. Speculative.
MR. STETZER: I’ll move on, Your Honor.
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Q. Do you have any opinion about when those additional alleles
were left?
A. No, I have no idea when they were deposited.
Q. Thank you. Did you also generate statistical information
about the odds of finding that DNA profile at random?
A. Yes, I did.
Q. Can you tell us about those?
A. A predominant partial DNA profile obtained from the swabbing
from the front passenger door arm rest is approximately 84.7
million times more likely to be observed if it came from Neal
Cassada than if it came from another unrelated individual in the
North Carolina Caucasian population, 9.62 billion times more
likely to be observed if it came from Neal Cassada than if it
came from another unrelated individual in the North Carolina
black population, 153 billion times more likely to be observed if
it came from Neal Cassada than if it came from another unrelated
individual in the North Carolina Lumbee Indian population, and
219 billion times more likely to be observed if it came from Neal
Cassada than if it came from another unrelated individual in the
North Carolina Hispanic population.
Q. Thank you, ma’am. I am placing before you what has been
previously admitted as State’s Exhibit Number 60, SBI item 34-15.
Can you please tell me what is before you?
A. A swabbing from the seat belt button, passenger side back
seat.
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Q. What were you asked to do with that?
A. Develop a DNA profile and compare it to the known standards.
Q. And were you able to do that?
A. Yes, I was.
Q. Tell me what the results of that analysis was.
A. The partial DNA profile obtained from the swabbing from the
seat belt button passenger side back seat is consistent with the
mixture. The DNA profile from Mark Carver cannot be excluded as
a contributor to the mixture.
Q. What does that mean?
A. That he possibly could have been a contributor.
Q. Did you find DNA material consistent with his DNA profile
there?
A. Yes.
Q. But you did not find enough of that material to make a
definitive match?
A. Right.
Q. And you were able to exclude Neal Cassada as a contributor
to that?
A. The DNA profile from Neal Cassada was excluded as a
contributor to the mixture.
Q. And because we are dealing with a mixture did you have any
opinion as to the contribution, if any, of Irina Yarmolenko to
that mixture?
A. No conclusion can be rendered as to the contribution of the
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DNA profile of Irina Yarmolenko.

Q. Now given the amount of DNA material that you did find
consistent with Mr. Carver, was there enough to do the statistics
that we’ve talked about this morning?
A. There would have been enough to do a mixtures statistic but
it was not performed on this particular item because statistics
had already been generated for the other item that matched him.
Q. I hand you what’s been admitted previously as State’s
Exhibit Number 43 which came from within the packaging that this
is sitting on top of. Will you look at the packaging and then
look at State’s 43 for me?
A. (Examining items)
Q. Did you get a chance to look at those items?
A. Yes, I did.
Q. All right. Have you seen State’s Exhibit 43 before?
A. Yes, I have.
Q. And what is State’s Exhibit Number 43, just for the record?
A. It is a camera identified as found in the trunk of the car.
Q. What were you asked to do with that camera, if anything?
A. Develop a DNA profile.
Q. And how did you go about processing that camera to see if
you could do that?
A. I took swabbings.
Q. All right, and were you able to develop a DNA profile from
that particular forensic item?
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A. No. No DNA profile was obtained from the swabbing from the
camera found in the trunk of the car.
Q. Thank you, ma’am. Does that mean no DNA profile that you
could match or you just didn’t find any DNA at all?
A. No DNA profile at all.
Q. Thank you, ma’am, and that’s despite the swabbings?
A. Yes.
Q. Would that maybe be an example of what we were talking
about earlier where something you can handle and still not have
DNA on it?
MR. RATCHFORD: Objection to the statement.
THE COURT: Repeat your question.

Q. Ms. Winningham, my question was would that be an example
of something that we know has been handled that has no DNA on it
as we discussed previously?
A.
Yes.
MR. RATCHFORD: Objection.
THE COURT: Overruled.
Q. Do you need me to repeat the question again?
A. No.
Yes.
THE COURT: No or yes, you want the question repeated,
or no or yes the answer to the question?

A.
No, I didn’t need the question repeated. Yes is the answer.
THE COURT: Thank you.
Q. Thank you, ma’am. I show you State’s Exhibit Number 50 that
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has been admitted, State’s 49 that has been previously admitted,
and State’s 48 that has been previously admitted. That is going
to be SBI lab numbers 23, 24 and 25 is what it should be. Do you
recognize those items?

A. 23 I do not, SBI number 23.
Q. From inside that envelope would be what is marked as 23-1.
Do you recognize that?
A. Yes. This I would.
Q. Okay. So what are the items that I have just handed you?
A. SBI number 23-1 is a swabbing from two ends of ribbon. SBI
item 24 is a drawstring from Irina Yarmolenko and item 25 is a
bungee cord from Irina Yarmolenko.
Q. Thank you, ma’am. Let’s go with 23-1. What was that item?
Swabbings?
A. Yes.
Q. What were you asked to do with those swabbings, if anything?
A. Develop a DNA profile.
Q. And were you able to do that?
A. Yes, I was.
Q. And on item 23-1 whose DNA did you find, if anybody’s?
A. The DNA profile obtained from the swabbing from the two
ends of ribbon is consistent with a mixture. The predominant
profile matched the DNA profile from the blood stain of Irina
Yarmolenko.
Q. Were you able to find anybody else’s DNA on that?
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A. Additional alleles were present that could not be accounted
for by the submitted standards.
Q. Now with that we had additional alleles on something
earlier. Am I correct about that?
A. Yes.
Q. But I believe you said that wasn’t uncommon. Is it still
not uncommon?
A. It’s not uncommon.
Q. Can you give us an opinion about when those additional
alleles were left?
A. No, I can’t.
Q. But did you find the DNA of either Mark Carver or Neal
Cassada on that item on the swabs?
A. The DNA profiles from Mark Carver and Neal Cassada were
excluded as contributors to the mixture.
Q. Thank you, ma’am. Does that mean they didn’t touch that
item?
A. Not necessarily, no.
Q. That means you didn’t find their DNA on that item?
A. Correct.
Q. The next item I want to talk to you about is item 24. Will
you put that in front of you? It’s up there.
A. 24?
Q. Yes, ma’am, and what is 24?
A. 24 is the drawstring from Irina Yarmolenko.
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Q. And were you asked to do - or what were you asked to do, if
anything, about that?
A. Develop a DNA profile and compare it.
Q. And were you able to develop a DNA for item 24-1?
A. Yes, I was.
Q. Whose DNA did you find there?
A. The partial DNA profile obtained from the swabbing from the
drawstring matched the DNA profile from Irina Yarmolenko.
Q. Who else’s DNA did you find on there?
A. No one’s.
Q. Were there any other partial profiles on that or additional
alleles?
A. No.
Q. Thank you, ma’am, and with that one you only found a partial
profile from Ms. Yarmolenko?
A. Yes.
Q. Thank you, ma’am, and that one was not a mixture?
A. It was not a mixture.
Q. Let’s turn our attention to item number 25, please. What
is item number 25?
A. 25 is a bungee cord from Irina Yarmolenko.
Q. Thank you, and what were you asked to do with that item,
if anything?
A. I was asked to generate a DNA profile and compare it to
other standards.
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Q. Were you able to do that in that case?
A. Yes, I was.
Q. What were the results of that analysis?
A. The partial DNA profile obtained from the swabbing from
the bungee cord is consistent with a mixture. The DNA profile
from Irina Yarmolenko cannot be excluded as a contributor to the
mixture. Additional alleles were present which cannot be
accounted for by the standard submitted.
Q. Were Mr. Carver’s or Mr. Cassada’s DNA found on that item?
A. The DNA profiles from Mark Carver and Neal Cassada were
excluded as contributors to the mixture.
Q. So you were unable to find them on that item?
A. Yes.
Q. Thank you. Now you said as to Ms. Yarmolenko that she
cannot be excluded as a contributor for that mixture. Is that
the same result as we had earlier with the seat belt button, the
same type of result?
A. No. I gave no conclusion as to her contribution to the
seat belt button.
Q. I’m sorry. Earlier we talked about the defendant couldn’t
be excluded as a contributor and we talked about what that meant.
In this case we are talking about Ms. Yarmolenko can’t be
excluded as a contributor. What does that mean?
A. That she cannot be excluded as being a contributor to the
mixture.
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Q. Did you find genetic material consistent with the DNA
profile from Irina Yarmolenko at that location?
A. Yes.
Q. So you did not find enough to render a match?
A. No. It wasn’t reported as a match. It wasn’t a predominant
profile for one so you can’t pull out a match unless it is
predominant.
Q. But to make it not excluded you did find genetic material
consistent with Irina Yarmolenko at that location?
A. Yes.
Q. Okay. Thank you, ma’am. Other than those three items we
have been talking about, other than Irina Yarmolenko, were you
able to find a complete profile for any other person?
A. No, I was not.
Q. Scientifically, based on your training and experience as a
scientist, are you able to give this jury an opinion about
whether or not this defendant, Mark Carver, touched either the
bungee cord, the drawstring or the ribbon? Can you give an
opinion about that?
A. No. I can give the statistical rate of randomly finding
the profile of an unrelated individual in the general population.
Q. I am only asking about the three items, the drawstring,
the ribbon and the bungee cord.
ANo, I cannot.
..

Q. You can’t give us an opinion either way about that?
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A. No.
Q. Are you familiar with the term secondary transfer?
A. Yes, I am.
Q. What does that term mean?
A. Basically it is DNA transferred from one item and that is
also transferred to another item.
Q. We are going back now to the swabbings. Okay? The
swabbings of the interior of the car. Are you with me?
A. (Indicating yes)
Q. Okay. When you are back to the swabbings you found that
we matched the DNA profile to Mark Carver. Did you look at that
profile as whether or not it was consistent with secondary
transfer?
A. There would be no way to determine if it is consistent with
secondary transfer.
Q. Do you have an opinion about whether it is a secondary
transfer?
MR. RATCHFORD: Objection.
THE COURT: Overruled.

Q. Do you have an opinion about whether it is a secondary
transfer?
A. No, I don’t.
Q. The alleles that weren’t accounted for, are those alleles
consistent with the DNA profile of Irina Yarmolenko? I am
specifically talking now about the match to this defendant, Mr.
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Carver, on the pillar above the driver’s side rear door.

A. No conclusion was given as to the contribution of Irina
Yarmolenko.
Q. Right. So what I am asking is do you have an opinion. Let
me back up. In this case does it appear that DNA was transferred
from one person to another person to the car?
A. No.
Q. Why not?
A. That’s highly unlikely.
Q. Have you seen it before in your career?
A. Not that I know of.
Q. You have never encountered it, as far as you know?
A. Right.
Q. So in your scientific opinion is this a case of
transference?
A. A tertiary transference? No.
Q. And with all three of the matches from the swabs from the
car, based on your training and experience do you have an opinion
about whether or not these are direct transfers to the car?
A. Possibly, yes.
Q. Are you familiar with the research I know that Dr. Ladd
did about secondary transfers?
A. No, I am not.
Q.
Thank you. May I have a minute?
THE COURT: Yes.
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MR. STETZER: Northing further.

THE COURT: Members of the jury, we are going to take
our morning recess at this time until 11:15. Remember you are
not to discuss the case with anyone or among yourselves and you
are not to have any contact or communication with any
participant. We will resume at a quarter after.

(Whereupon, the Court took a morning recess from 11:00
to 11:15 and thereafter reconvened with the defendant and all
counsel present.)

THE COURT: Examination.

MR. RATCHFORD: Thank you, Your Honor.
CROSS EXAMINATION BY MR. RATCHFORD:

Q. Ms. Winningham, you stated earlier that you said that only
identical twins have identical DNA, correct?
A. Correct.
Q. And that’s true when you are analyzing only a hundred
percent of the DNA, correct, that you can tell that?
A. No.
Q. It’s not?
A. It is based on - well, for forensic purposes it is based on
the sixteen areas that we look at that give greater than the
world’s population.
Q. And those are called loci, correct?
A. Loci.
Q. Loci. I’m sorry. And there is sixteen loci and then there
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is a gender gene; is that right?

A. Yes.
Q. And what is that called?
A. Amelogenin.
Q. And what does that detect or show?
A. It shows an X or Y chromosome.
Q. Okay, and what does a male have and what does a female have?
A. A male has X and Y. A female two X’s.
Q. Now those sixteen loci, that is what you are analyzing to
come up with your conclusions, correct?
A. Yes, the DNA profile.
Q. Okay. Now would you agree with me there are two parts of
DNA, the forensic analysis of DNA which is going to be the
molecular genetics part which is the lab work, correct?
A. Correct.
Q. And then there is going to be a population genetics which
is the statistical part that you were talking about?
A. Yes.
Q. One without the other is basically meaningless?
A. Not necessarily, no.
Q. But you really need population genetics to show how
accurate you are, correct?
A. If you have a match in the case, yes.
Q. Now you talked earlier about you may not have enough cells
or I am going to use the generic term stuff in order to analyze.
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A. Correct.
Q. But there is techniques in the lab where you multiply those
things, multiply that stuff in order to gain a sufficient sample
in order to test, correct?
A. If there is enough sample present to start with, yes, you
will generate enough information.
Q. Okay. What is that called? What do you do when you do
that?
A. It is called PCR which is polymerase chain reaction.
Basically what you are doing is looking at the sixteen areas and
you are multiplying them in theory up to a billion times so you
can further analyze your sample.
Q. So you can take a very small amount and multiply it in order
to analyze it?
A. Yes.
Q. Do you wear gloves in your laboratory?
A. Yes.
Q. How often do you change your gloves?
A. Frequently.
Q. And why do you change your gloves?
A. You want to try to eliminate any type of contamination.
Q. Such as transfer?
A. Yes.
Q. Transferring one’s sample that you are analyzing to
another sample that you are analyzing?
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A. That’s one area and also I don’t want to transfer my own DNA
to the samples.
Q. So if you don’t have your gloves on you can actually
contaminate your sample by placing your own DNA in the sample?
A. It’s possible, yes.
Q. When you have a mixed sample, that being, I believe you
explained before, more than one person’s DNA present A.
Correct.
Q. When you do a DNA analysis, does it tell you the race of
the donor?
A. No, it doesn’t.
Q. Does it tell you the age of the donor?
A. No.
Q. Does it tell you when the sample was placed on the surface
that is being swabbed?
A. No, it doesn’t.
Q. You have absolutely no way to tell how long a sample is
present on a surface when it is tested for DNA?
A. Correct.
Q. You were asked to test numerous items in this case, correct?
A. Yes.
Q. Do you have your reports there in front of you?
A. Yes, I do.
Q. I want to read some of the items that you were requested to
test. I am referring to your December 30, 2008 report.
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A. Okay.
Q. You were requested to test swabbings from the driver’s side
rear door, the left rear fender behind the rear door, underside
of exterior door handle, driver’s side rear door, top of the
trunk, passenger side rear door, windshield pillar passenger
side, front passenger door arm rest, front passenger door
interior door handle, rear passenger door interior door handle,
the grab handle above the right rear door, seat belt buttons in
the passenger side in the front and back seat, the arm rest for
the driver’s side rear door, the interior door handle for the
driver’s side rear door, the seat belt button on the driver’s
seat, the interior trunk release, grab handle for the driver’s
side rear passenger side, the arm rest for the passenger side
rear door. Those things were tested just on that one report,
correct?
A. Correct.
Q.
Did you also test nail scrapings from Ms. Yarmolenko?
MR. STETZER: Objection.
THE COURT: Overruled.
MR. STETZER: May we approach?
THE COURT: Yes.
(Conference at the bench with counsel)
Q. Did you test nail scrapings from Ms. Yarmolenko?
A. Yes, I did.
Q. From the left hand and the right?
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A. Yes.
Q. You were requested to test pieces of food?
A. I was.
Q. You also were requested to test a camera found in the trunk,
pliers found in the trunk - I’m sorry - pliers found inside the
car, an envelope with a letter, ignition switch swab, a gear
shift swab, a driver’s seat belt swab?
A. Yes.
Q. You also were requested to test and did test - let me back
up. You were requested to test all those items?
A. Yes.
Q. You did test all those items?
A. Yes, I did.
Q. Were you requested to test the sweatshirt and skirt in this
matter or swabbings from a sweatshirt and skirt in this matter?
A. Yes, I did.
Q. And you were asked to compare those matters in all - most if
not all to Mr. Carver and Mr. Cassada?
A. Yes, as well as other standards that were submitted.
Q. There were six or seven other standards or DNA profiles
that were sent up to you to compare them to?
A. About that many, yes.
Q. And when I say those other standards, those were other
people’s DNA?
A. Yes.
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Q. You did not match or had a match in any of your tests on the
bungee cord to Mr. Carver, did you?
A. No, I didn’t.
Q. Nor the drawstring to Mr. Carver?
A. Correct.
Q. Nor the blue ribbon to Mr. Carver?
A. Correct.
Q. You were talking about secondary transfer or tertiary
transfer?
A. Yes.
Q. Would secondary transfer be another term for that?
A. No. Secondary transfer is me sitting here touching that.
Tertiary transfer would be touching this, someone else touching
this, and transferring my DNA.
Q. So when you said that there were additional alleles present
that you could not account for, different basically parts of DNA
from a different source, you had no idea where they came from?
A. Right.
Q. Nor how it got there?
A. No.
Q. But you gave an opinion that it was not tertiary transfer.
What do you base that on?
A. I base it on the fact that it is highly unlikely. I am
not saying that it is not possible but it is not probable.
Q. Did you visit the scene?
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A. No, I didn’t.
Q. Did you examine the vehicle which the swabbings were - you
were told that they were taken from?
A. No.
Q. So you are saying highly unlikely but possible that the
samples that you analyzed were tertiary transfers?
A. It’s possible.
Q. When you analyzed the seat belt button in the back seat
which I believe was SBI number 34-15, you said you could not
exclude Mr. Carver.
A. Correct.
Q. But you could not include him, either, or match him,
correct?
A. Correct.
Q. When you did that test, isn’t it true you did not find a Y
chromosome in that analysis?
A. I did not.
Q. And that would show that there is no male DNA on that,
correct?
A. It would say that there is no DNA detected.
Q. Is there another type of DNA testing which focuses on
chromosome testing, XY chromosome testing?
A. There is a Y STR.
Q. Does the North Carolina State Bureau of Investigation lab
conduct that testing?
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A. Not at this time.
Q. To your knowledge, does the Richland County Sheriff’s
Department conduct that testing?
A. I don’t know.
Q.
Those would be our questions.
THE COURT: Anything further?
MR. STETZER: May I have just a moment?
THE COURT: Yes.
REDIRECT EXAMINATION BY MR. STETZER:

Q. Ms. Winningham, of the items we have talked about that I
have handed you on the stand today, other than the
identifications that you have discussed in this courtroom, did
you make any other identifications?
A. I did not.
Q.
Nothing further. Thank you.
MR. RATCHFORD: Nothing further.
THE COURT: Thank you, ma’am.
KRISTIN HUGHES, being first duly sworn, testified as follows
during DIRECT EXAMINATION BY MR. STETZER:

Q. State your name, please.
A. Kristin Hughes. H-u-g-h-e-s.
Q. Thank you, ma’am. How are you employed?
A. I am a special agent with the North Carolina State Bureau
of Investigation currently assigned to the crime laboratory in
Raleigh, currently employed as a forensic biologist.
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Q. And how long have you been so employed?
A. Since 2004, so almost seven years.
Q. And what does a forensic biologist with the SBI do?
A. A forensic biologist - my job is to analyze evidence for
possible DNA profiles and to compare any DNA profiles from the
evidence to DNA profiles obtained from standards from victims or
suspects in cases and to report any results that I may get from
those comparisons.
Q. And what training and experience do you have that qualifies
you to do that?
A. I have a bachelor’s of science in biology from Northeastern
University. I also have a master’s of science degree in forensic
molecular biology from the George Washington University. As I
stated before, I began my career with the bureau in 2004. I did
a full year of law enforcement training, basic law enforcement
training, as well as special agent - SBI special agent academy.
When I completed the law enforcement training I came back to the
laboratory and immediately began an intensive in house DNA
training program. This consisted of the analysis of multiple
samples that were created in house. I had to complete a series
of competency tests with one hundred percent accuracy, which I
did. I then entered into a period of supervised case work under
the direct supervision of a series of qualified DNA analysts,
senior DNA analysts, in section. I then began doing case work
independently in April 2006 and I have been doing case work since
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then. Twice per year I take external proficiency tests to make
sure that I am proficient in my analysis. I am also a member of
the American Academy of Forensic Scientists.

Q. Thank you, ma’am. Have you testified before as an expert in
DNA analysis and forensic biology?
A. Yes, I have.
Q. How many times have you done that?
A. Approximately twenty-five times, and that includes federal
court.
Q. You have been accepted as an expert in court in those cases?
A.
Yes, I have.
MR. STETZER: I tender her as an expert in forensic
biology and DNA analysis.
MR. RATCHFORD: No objection.
THE COURT: Very well.

Q. What is the process called technical review in the SBI
laboratory?
A. A technical review is an evaluation of all the data, notes
and associated paperwork within a case file to ensure that the
proper procedures were performed during analysis of the case such
that there is sufficient scientific basis for reaching the
conclusions from results obtained in that case. It is to ensure
accuracy and completeness in a case file. A technical review is
required for every DNA case file that is generated in our section
and that technical review must be completed by a qualified
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analyst who did not actually do the work in the case.

Q. And were you part of the technical review process in this
case that we are dealing with today?
A. Yes. I did the majority of the technical reviews in this
case.
Q. And, in fact, did you conduct a technical review of all the
identifications made in this case?
A. I believe I did, yes.
Q. And how many were there?
A. How many -
Q. Identifications were made.
A. There were several. Did you want specifically Q.
How many people were identified DNA profile wise in this
case that you reviewed?
A. There was the victim and then there were several others, two
others at least, which had statistics generated for those
associations.
Q. Who were those two others?
A. Mark Carver and Neal Cassada.
Q. Who was the third person you mentioned or the third DNA
profile you mentioned?
A. The victim, Irina Yarmolenko.
Q. Did you conduct a technical review of the rest of Ms.
Winningham’s work and the analysis of the items actually that are
before you on the rail there? And I will be specific. Items 34Hughes
- Direct/Stetzer - 302

-303

2, 34-9, 34-10 and 34-15. Did you conduct a technical review of
her analysis for those items?

A. Yes, I did.
Q. All right. What were the results of your technical review?
A. That the case analyst, Karen Winningham, had complied with
section policies and procedures and reached her obtained results
and appropriate conclusions which I agreed with in these files.
Q. Thank you, ma’am. Did you also do a technical review of
Ms. Winningham’s analysis of 23-1, 24-1 and 25-1, the ribbon or
swabbings from the ribbon, drawstring and bungee cord?
A. Yes, I did.
Q. What were the results of that technical review?
A. Again that Agent Winningham had complied with section
policies and reached the appropriate conclusions in that file.
Q. Thank you, ma’am. I want to talk to you about some DNA
information we learned, specifically about touch DNA. Are you
familiar with touch DNA?
A. Yes.
Q. Have you worked cases with touch DNA?
A. Many, yes.
Q. So you have significant training and experience with touch
DNA cases?
A. I would say so, yes.
Q. Are mixtures uncommon in touch DNA cases?
A. No.
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Q. For the record, you shook your head rather strongly about
that. Tell us why.
A. When it comes to touch DNA, that’s not the ideal source for
DNA. In forensic DNA case work ideally the best potential
sources for DNA are going to be body fluids such as semen, saliva
or blood. Touch DNA is exactly what it sounds like. It sheds
skin cells from a person but they are not the best source of DNA.
Sometimes you can get results with touch DNA. Sometimes you
cannot obtain a DNA profile from that kind of a source of DNA.
The results that you may get if you can obtain DNA may be very
complex. So touch DNA is not the best source of DNA.
Q. One of the things we learned was that there were additional
alleles present in several of the samples or standards. Is that
uncommon in your experience in touch DNA?
A. Not with touch DNA, no.
Q. Can you tell me about the term preferential amplification,
what that means to you, if anything, as a forensic scientist.
A. Preferential amplification refers to doing a process in
which we copy or make multiple copies of the DNA that is present
in a sample. One person’s DNA profile out competes everybody
else’s and will be amplified or become present in our analysis in
excess of somebody else’s.
Q. I want to give you a hypothetical and ask your opinion on
it. If something is right against my body and someone else
touches it, is that a situation where preferential amplification
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would come into play?

A. It can, yes.
Q. How about the term environmental insult? Are you familiar
with that term?
A. Yes.
Q. What does that mean?
A. Environmental insult refers to things naturally occurring in
our environment that can degrade DNA that may be present on a
sample or break it down to the point where we can’t obtain a full
DNA profile. Such things would include direct exposure to
sunlight, water, extreme humidity. Those kind of situations are
not ideal for the preservation of DNA evidence.
Q. Let me give you another hypothetical. I talked to Ms.
Winningham about this pen and it may or may not have my DNA on
it. If I ran water over it, would that have an effect on your
ability to generate a DNA profile from this pen?
A. Yes, it might.
Q. Another hypothetical. If I put this in moving water, would
that be an example of environmental insult?
A. It could be because at that point you also have a mechanical
motion of moving water that will also potentially wipe off any
DNA that is on that item.
Q. Are you familiar with the term inhibition as it is discussed
in DNA amplifications?
A. Yes.
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Q. What does that term mean?
A. Inhibition or inhibitors are things that can impede our
ability to detect a DNA profile. One classic example is the dye
in your blue jeans. That dye we have an issue with being able to
obtain DNA profiles if there is an excess of that dye present on
a sample.
Q. With dye does color of the dye matter in dealing with
inhibition?
A. Generally, yes. The darker the color dye, the more
difficulty we may have in obtaining a DNA profile.
Q. Did you see the ligatures in this case?
A. I did not see them firsthand, no.
Q. We talked about transference with Ms. Winningham and I fear
I used the wrong word and may have confused her, but the
difference between tertiary transfer and secondary transfer.
Would you explain what those terms mean?
A. Secondary transfer refers to a situation where if I shake
your hand and then you shake His Honor’s hand, could you find my
profile on His Honor’s hand. That’s secondary transfer.
Tertiary transfer refers to that same situation but then His
Honor shakes the hand of juror number one. Can you find my DNA
profile on the hand of juror number one. That’s tertiary
transfer.
Q. And how far - commonly speaking in your day to day work at
the laboratory, how common is this sort of transfer that you are
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talking about?

A. That kind of transfer in terms of evidence that is submitted
to us to work that has been described to us as being that
potential situation, we have seen it several times, but usually
primary transfer, I’ve touched the Bible, can you find my DNA on
that Bible, that’s primary transfer. That is the majority of the
touch DNA samples that we receive in the laboratory.
Q. That is the most common method?
A. That is the most common type of transfer with regards to
touch DNA, yes.
Q. And you reviewed the samples and the analysis done in this
case?
A. Yes.
Q. Do you have an opinion satisfactory to yourself about
whether this was a direct transfer of DNA or something else?
A. It is my opinion that - given the description of the
evidence as well as the results that were obtained, it is my
opinion it is much more consistent with having originated from
primary transfer.
Q. Are you familiar with some of the research on whether DNA
profiles are to compromised by secondary transfer?
A. Yes.
Q. And what is the research that you are familiar with show
about that?
A. The research that I’ve seen in scientific journals has
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indicated that the ability to obtain a full identifiable, yes,
this profile belongs to the original person type situation with
secondary or tertiary transfer, does not really happen, does not
appear to really happen.

Q. Thank you, ma’am. Nothing further. Thank you.
CROSS EXAMINATION BY MR. RATCHFORD:
Q. You have no idea how DNA was placed or came to be located
on any of the surfaces or items tested in this matter, do you?
A. I have no primary knowledge of that, no.
Q. And so you said that you gave an opinion as to it was these
were primary transfers but you can’t be sure.
A. No, I cannot.
Q. You have no - you have no - when you did the testing or
when you did the technical review, you had no indication at that
time as far as any environmental effects on any of the samples,
correct?
A. Nothing beyond what was included in a description in any of
the SBI-5's.
Q. You didn’t visit the scene?
A. No, sir, I did not.
Q. You didn’t visit the car that was tested or anything like
that?
A. No, sir, I did not.
Q.
Those would be my questions.
THE COURT: Anything further?
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MR. STETZER: No. Thank you.

THE COURT: Thank you, ma’am.

MR. STETZER: May these two witnesses be excused, Your
Honor, from their subpoenas?

MR. RATCHFORD: Yes, sir.

THE COURT: All right.

MS. HAMLIN: Your Honor, may we approach?

THE COURT: Yes.

(Conference with counsel at the bench)

THE COURT: We will take our lunch recess now and come
back at 1:30 as opposed to 2:00. Remember not to discuss the
case with anyone or have any contact with any participant and
don’t visit the scene or make any type of independent
investigation. Thank you for your attention. Sheriff, you may
escort the jury from the courtroom.

THE COURT: Let the record show the jury has left the
courtroom. Further let the record show that we had three bench
conferences. Two were evidentiary matters. One was the Court’s
ruling regarding that the witness - one witness, Ms. Winningham
testified that she did receive nail scrapings and other matters
to test but she was not permitted to give the results of those
tests because of a lack of foundation. The last conference was
regarding the schedule at lunch that we just took and the
previous bench conference was also an evidentiary matter that the
counsel resolved at the bench and the trial proceeded. Is that

309

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an accurate reflection of bench conferences?

MR. STETZER: To the best of my recall it is, Your

Honor.
MR. RATCHFORD: Yes, sir.
THE COURT: We will be in recess until 1:30.
(Whereupon, the Court took a lunch recess from 12:00

until 1:30 and thereafter reconvened with the defendant and all

counsel present.)
THE COURT: Anything prior to summoning the jury?
MR. STETZER: Not from the State.
MR. RATCHFORD: No, sir.
(Whereupon, the jury returned to the courtroom.)
THE COURT: What says the State?
MS. HAMLIN: Your Honor, the State calls Dr. Nguyen.

CHRIS NGUYEN, M.D., being first duly sworn, testified as follows
during DIRECT EXAMINATION BY MS. HAMLIN:

Q. Please state your full name.
A. Dr. Chris Nguyen.
Q. How do you spell your last name?
A. It is spelled N-g-u-y-e-n.
Q. Where are you employed?
A. I am employed with Leone Pathology Associates at Gaston
Memorial Hospital.
Q. And what is your position there?
A. I am one of the pathologists.
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Q. How long have you worked in that particular position at
Gaston Memorial Hospital?
A. Almost four years.
Q. Now prior to your employment with Gaston Memorial Hospital,
where else have you worked in the medical field?
A. Before my employment with Leone Pathology I was down in
Jacksonville, Florida at the University of Florida Hospital and
before that I was at the Wake Forest University North Carolina
Baptist Hospital in Winston Salem, North Carolina.
Q. Please tell the jury about your education.
A. My education?
Q. Yes.
A. I have a four year bachelor’s degree in biology from
the University of South Carolina. Subsequent to that I did four
years of medical training at the University of South Carolina
School of Medicine where I obtained my medical degree. After
that I went to the Wake Forest University Baptist Medical Center
for my six years of training in the field of pathology and then
after that I went down to Jacksonville, Florida for an additional
year of special pathology fellowship training.
Q. And are you board certified in the field of pathology?
A. I am.
Q. Are you a member of any professional organizations
involving pathology?
A. I am.
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Q. Which one?
A. I am a member of the College of American Pathologists, the
American Society of Clinical Pathology, the Gaston County Medical
Society and the North Carolina Medical Society.
Q. And have you testified before as an expert in the field of
pathology in this particular state?
A.
I have.
MS. HAMLIN: Your Honor, at this point the State would
tender Dr. Nguyen as an expert in the field of pathology.
MR. RATCHFORD: No objection.
THE COURT: Very well.

Q. What are the duties of a pathologist?
A. That’s kind of a broad question but basically a pathologist
is a medical specialist, a medical doctor, who specializes in the
study of diseases, disease processes, makes diagnoses of disease,
and he does that by studying body tissues, fluids and other
specimens.
Q. In your work as a pathologist does it also include
performing autopsies?
A. It does.
Q. And tell the jury what an autopsy is.
A. In the simplest of terms an autopsy is a medical procedure
which is performed on a body after death in order to try to
ascertain or try to determine the cause of death and it is also
documenting other disease processes that may also be present.
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Q. Now we all watch a little bit of TV so one question I have
is are you able to determine the time of death during an autopsy?
A. In this particular case an accurate estimation of the time
of death is not possible.
Q. How many autopsies have you performed?
A. Over 220.
Q. Let me draw your attention back to May 6th of 2008. Were you
employed back then with Gaston Memorial Hospital?
A. Yes.
Q. And did you perform an autopsy on an individual named Irina
Yarmolenko?
A. I did.
Q. Who other than yourself - who else was present during that
autopsy?
A. At the autopsy several police officers were present. We
also had an assistant, an autopsy assistant, who assisted me in
the autopsy, and I believe one of the other Gaston County medical
examiners was also present.
Q. And where did this autopsy take place?
A. It took place in the morgue facilities at Gaston Memorial
Hospital.
Q. Now what did you first notice about the body of Irina
Yarmolenko?
A. When I first examined the body the first thing I obviously
noticed was the presence of multiple ligatures wrapped around the
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victim’s neck.

Q. Describe those ligatures.
A. There were three ligatures present upon my examination. The
first ligature that was tied was a length of black cord which I
feel was consistent with the drawstring from the victim’s hooded
sweatshirt and that ligature was wrapped twice around the
decedent’s neck very tightly. It was knotted multiple times on
the front right side of her neck. The second ligature was a
length of blue ribbon like material that had frayed ends on
either end and that was also tied around the neck relatively
tightly and was knotted on the front, and the final third
ligature was a length of dark blue bungee cord which had black
hooks on either end. That was also wrapped tightly multiple
times around the victim’s neck and the hooks were hooked on the
back of her neck.
Q. Now you described a little bit about these ligatures being
tight starting with the cord. How tight - I mean in your best
estimation how tight are they if you were to describe it?
A. In relative terms it was very tight, tight enough to cause
furrows or indentations within her skin and also the soft tissue
underneath her skin so that when the ligatures were removed those
indentations were actually still there, and there was also
associated blistering of the skin associated with the cords and
upon reflection of the skin when you take the skin off and you
look at that superficial soft tissue underneath where the
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ligatures were there was also some soft tissue hemorrhage. So
all these indicate that the ligatures were on very tightly.

Q. How would the tightness of these ligatures affect the
victim?
A. In my opinion ligatures that are tied that tightly around
the neck would cause cessation of blood flow to the head and more
importantly the brain and would cause a lack of consciousness,
passing out basically, relatively quickly.
Q. Okay. So the initial effect on the victim would be sort of
a passing out?
A. That’s correct.
Q. And how long would it take for the ligatures this tight to
actually cause the body to pass out, not die but pass out?
A. It varies, but on the order of seconds.
Q. So is it possible that the ligatures in this case,
specifically that drawstring, the first one right there, you
indicated that caused the blistering or was it all the ligatures?
A. Certainly all the ligatures contributed to it but the one
that contributed the most was that initial drawstring.
Q. So is it possible that the drawstring based on its tightness
around the victim’s neck, could possibly first result in the
victim passing out, not dying but passing out first?
A. Yes.
Q. Now is it possible that the victim could have actually
woken up from this loss of consciousness even if it was just for
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a brief moment?

A. After a victim loses consciousness from pressure from a
ligature, for whatever reason the pressure or the tension is
loosened somewhat and some blood flow is able to return and flow
back into the brain. Yes, that is possible that the victim may
attain some level of consciousness again.
Q. So maybe movement of the victim, movement of the ligature,
things of that nature?
A. Correct.
Q. Now were photographs taken of the victim during the autopsy?
A. Yes.
Q. Now you described a little bit about some blistering that
you saw around the victim’s neck.
May I approach?
THE COURT: All right.

Q. I will show you what has been previously marked, identified
and admitted as State’s Exhibit 45. Take a look at that. Do you
recognize that?
A. I do.
Q. Okay, and what is that?
A. This is a close up picture of the victim’s right neck and it
shows the black cord we were discussing and also the length of
blue ribbon which was tied on top of that.
Q. Okay. What else is noticeable in that picture?
A. Obviously noticeable are the presence of very deep
indentations adjacent to the black cord as well as the knots
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within the black cord and also the blistering of the skin.

Q. Okay, and would this particular picture help illustrate your
testimony about that blistering and the tightness of this cord?
A.
Yes.
MS. HAMLIN: Your Honor, at this point I would ask that
the doctor be able to step down and show that to the jury.
THE COURT: Very well.

A. (Witness leaving stand)
Q. Would you start from one end? On this particular picture
if you would point out like the blistering that you are seeing,
the indentations that were caused from the tightness of the
ligatures?
A. This is the knot from the cord of the rope and here you can
see the indentations.
THE COURT: Doctor, you are going to have to keep your
voice up. The court reporter has got to take down what you are
saying.

A. Again what I am showing here is described as the right side
of the victim’s neck and here is the black cord which is wrapped
very tightly around her neck and also the blue ribbon. Adjacent
to the knots in the black cord you see this indentation in her
skin and that is the indentation I was discussing. There are
also some additional ones on the other side of the rope as well.
The blistering we were discussing are these areas here where
there are some actual blistering and redness and raising of the
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skin adjacent to the rope as well.

Q. If you could just go toward the end over there and point out
those items you just A.
Again a picture of the victim’s right side of her neck. Her
head is up here. The body is down here. This is the black cord
which we are describing and the blue ribbon which was also tied
around her neck. The indentations we were discussing are these
areas here that I am pointing out which are adjacent to the knot
in the string. The furrows are the areas where the skin is
actually indented by the tightness of the cord. The blisters we
are discussing are these areas here that I am pointing out which
are actually elevations in the superficial layers of the skin,
blistering and redness adjacent to the rope.
Q. Thank you.
A. (Witness returns to stand)
Q. Now, Dr. Nguyen, did you have the opportunity to view some
photographs from the scene, the crime scene?
A.
Yes, I did.
MS. HAMLIN: Your Honor, may I have just a moment?
THE COURT: All right.
Q. The photographs that you reviewed from the scene of this
incident, did you make any observations about her eyes?
A. I don’t guess I did.
Q. Did you also through looking at those pictures from the
crime scene, did you also make some observations about her legs?
Nguyen - Direct/Hamlin - 318

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A. Yes.
Q. What did you observe about her eyes?
A. What I saw in the pictures of her eyes were actually things
that I saw during the actual autopsy itself as well, which was
the presence of multiple small pinpoint hemorrhages on both eyes
involving the whites of her eyes, the sclera, and also the
conjunctiva of her eyes, and there were small tiny red
hemorrhages. Some of them were individual. Some of them were
multiple and coalesced together.
Q. And would being able to look at a picture that you had
previously reviewed of the eyes, would that help illustrate your
testimony of what you are talking about?
A.
Yes.
MS. HAMLIN: Your Honor, I would ask that the doctor be
able to come down.
THE COURT: Very well.

A. (Witness leaving stand)
Q. Is this a photo that you reviewed from the crime scene?
A. Yes.
Q. Okay. What are we looking at here?
A. We are looking at the decedent’s face, more of the right
side than the left, in particular her eyes, and what we are
seeing here and I think what is being depicted are these tiny red
pinpoint areas of hemorrhage in her eyes, not as well illustrated
on the left but they are also present there on the left.
Nguyen - Direct/Hamlin - 319

-320

Q. Okay. What causes that?
A. These are caused by essentially rupture of small capillaries
which are present in your eyes. Whenever ligatures are applied
or pressure is applied to your neck, it closes off the vascular
or the blood flow to your head, and that blood cannot get out of
your head and pressure builds up in your head and so small
capillaries tend to burst and when they burst they drop a small
drop of blood into the soft tissues and that is what you are
seeing there, and they are called petechia.
Q. Now you also looked at some other photographs. You talked
about looking at photographs that involved her legs.
A. Yes.
Q. Is that one of the photographs that you had looked at from
the crime scene that you reviewed?
A. Yes.
Q. Okay, and we are seeing a lot of redness here.
A. That’s correct.
Q. Okay. Can you describe what that is or what that possibly
could be consistent with?
A. Yes. What we are pointing out here is this sort of area,
roughly rectangular shaped area of skin, redness, on the top of
her lower thigh. That would be consistent with pressure in that
area.
Q. When you mean pressure, could it be like pressure on top of
her?
Nguyen - Direct/Hamlin - 320

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A. Yes.
Q. And then also looking at this photograph you actually at one
point looked at this photograph and the close ups of it, things
of that nature?
A. Yes.
Q. Zooming in? Let me see if I can get a better shot. Mr.
Stetzer, I may need your help, your assistance. That’s fine.
That’s good. Do you remember reviewing this picture at like a
closer up range?
A. Yes.
Q. And what is it about this picture that caught your
attention?
A. There is also some skin discoloration here but in particular
this area here that I will get you to focus on, this area here on
her right thigh.
Q. Okay, and what is that possibly consistent with?
A. That could possibly be a bruise as well.
Q. I am going to leave this TV for just a minute here. You can
retake your seat.
A. (Witness returns to stand)
Q. Now based on your training and experience and your findings
from the autopsy, do you have an opinion as to the cause of death
of Irina Yarmolenko?
A. I do.
Q. And what is that opinion?
Nguyen - Direct/Hamlin - 321

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A. I believe the victim died secondary to asphyxia which was
cause by ligature strangulation.
Q. And did you form this opinion shortly after the autopsy was
performed?
A. I did.
Q. Now we just talked about the fact that you reviewed
photographs from the crime scene, and did some of those
photographs affect your opinion of the cause of death in this
case?
A. After reviewing the photographs I feel like they supported
my original opinion.
Q. Okay, and how was that?
A. That this was a homicide and the cause of death was asphyxia
secondary to ligature strangulation.
Q. So did you have the opportunity to observe how the victim’s
body was laying by the river bank?
A. I did.
Q. Okay, and would that help illustrate your testimony about
how these crime scene photos actually confirmed your opinion that
this was a homicide?
A.
Yes.
MS. HAMLIN: May I approach?
THE COURT: Yes.
MS. HAMLIN: At this point I would just ask that the
doctor be able to step down again, Your Honor.

Nguyen - Direct/Hamlin - 322

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THE COURT: Very well.

A. (Witness leaves stand)
Q. Did you have the opportunity to look at this particular
photograph? Well, actually, you can’t see it. Sorry. Did you
have the opportunity to look at this particular photograph of the
crime scene?
A. Yes.
Q. Okay, and what was it about this particular photograph, if
anything, that confirmed your conclusion that this was actually a
homicide case?
A. What struck me the most besides the confirmation that the
ligatures were there as well was just the overall positioning of
the victim’s body. As you can see in this picture, her legs are
underneath the brush. This leg is also partially covered by
brush. She appears to be grasping also some of those grass
blades or branches and just the abnormal way that her legs are
laying. Her left leg is sort of bent at an angle that way. For
this to have been anything but a homicide, i.e., this was a
suicide, this victim would have to tie three ligatures around her
neck tightly and before death get into this position while that’s
going on and her legs underneath the brush given that position
and I just feel like that was not consistent with what we are
seeing.
Q. And you talked earlier about how the first ligature, because
it was so tight, would have actually caused her to pass out?
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A. That’s correct.
Q. Okay. Being unable at that point to tie other ligatures?
A. That’s correct.
Q. Now moving on to the next, what about this one? Does that
also - I think it’s a little bit of a closer of the one you just
saw.
A. Right.
Q. And there with her you talked about her leg position. I
think you can see it there a little bit better. Did that also
help confirm your opinion that this was a homicide case?
A. Yes, and another thing that this illustrates a little bit
better also is the presence of particular matter, soil and grass
on her skirt as well. So that’s another thing that would have
had to happen. If this was a suicide she would have had to do
all this stuff by herself. It is just not consistent with that
theory.
Q. And then this picture right here?
A. That is with a close up view of her leg and foot underneath
the brush.
Q. Okay, and does this help confirm?
A. Yes.
Q. And that is just a close up that you have already talked
about with her feet being completely under that brush?
A. Correct.
Q. Thank you, Doctor. I don’t have anything further.
Nguyen - Direct/Hamlin - 324

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A.
(Witness returns to stand)
THE COURT: Examination.
MR. RATCHFORD: Thank you, Your Honor.
CROSS EXAMINATION BY MR. RATCHFORD:

Q. Dr. Nguyen, on direct examination you said it was possible
that Ms. Yarmolenko passed out and came to and then passed out
again?
A. Yes, that’s possible.
Q. Possible, but you don’t have any objective evidence from
your viewings or your autopsy to support that. It is just
possible.
A. Correct.
Q. Do you have an opinion as to which ligature was placed in
what order?
A. And this is based solely on how they were placed on the
neck, but in my opinion the most likely ligature that was first
was that black cord which was consistent with the drawstring from
her sweatshirt. The second ligature was most likely that blue
ribbon just because it was lying partially on top of that corded
cord from her sweatshirt, and then exterior to both of those was
the bungee cord which was wrapped two times around her neck and
clamped on the back. So in my best opinion it was the cord from
the sweatshirt, then the blue ribbon, then the bungee cord.
Q. And that is merely from the way you found it during the
autopsy?
Nguyen - Cross/Ratchford - 325

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A. Correct.
Q. You did not visit the scene?
A. No, I did not.
Q. Were there nail scrapings taken from Ms. Yarmolenko in your
presence by Ms. Carol Pinckard?
A. I believe so, yes.
Q. And when you examined Ms. Yarmolenko’s neck were there any
marks to her necks other than the ligature marks such as a
grasping from claw marks or fingernail marks or anything like
that?
A. I did not see anything that I could definitely say was that,
no.
Q. You saw no defensive wounds or anything like that on Ms.
Yarmolenko, either, did you?
A. It would depend on your definition of defensive wounds.
Q. Any broken fingernails or cuts or anything like that?
A. I did not see any broken fingernails. There was a small
laceration on the index finger of her right hand.
Q. The area that you - you made a notation that she was
grasping in the brush area?
A. Yes.
Q. During your autopsy did you find any indication of sexual
assault?
MS. HAMLIN: Objection.
THE COURT: Overruled.

Nguyen - Cross/Ratchford - 326

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A. Could you be a little more specific? What exactly Q.
Did you look or examine Ms. Yarmolenko for the possibility
of sexual assault?
A. I did.
Q. Did you find any evidence that a sexual assault had
occurred?
A. I did not.
Q.
Those would be our questions.
MS. HAMLIN: Nothing further from this witness.
THE COURT: Anything further?
MR. RATCHFORD: No. Thank you.
THE COURT: Thank you, sir.
MS. HAMLIN: We would ask that he be released from his
subpoena.
MR. RATCHFORD: No objection.
THE COURT: Very well.

A.
Thank you.
THE COURT: Other evidence for the State?
MR. STETZER: The State rests, Your Honor.
THE COURT: Members of the jury, there is a matter the
Court is going to have to take up that doesn’t require your
consideration or participation. I will let you step back into
the jury room for a few minutes. Please remember not to discuss
the case or form any opinions about the case.

(Whereupon, the jury left the courtroom.)

Nguyen - Cross/Ratchford - 327

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THE COURT: Any motions from the defendant?

MR. PHILLIPS: Yes, sir, Your Honor. On behalf of Mr.
Carver we are going to move to dismiss both charges, conspiracy
to commit murder, also first degree murder. Your Honor, as you
know, the standard for a motion to dismiss in a criminal trial
should be granted where the State has failed to show substantial
evidence of, a, each essential element of the offense charged,
and that would be the conspiracy and first degree murder, or a
lesser offense included which we don’t contend there is any at
this point, and they have to show two things, the defendant being
the perpetrator of the offense, substantial evidence that Mark
Carver was the perpetrator of the offense.

All evidence actually admitted, whether competent or
not, must be viewed in the light most favorable to the State
drawing every reasonable inference in favor of the State. If the
evidence is sufficient only to raise a suspicion or conjecture as
to either the commission of the offense or the identity of the
defendant as a perpetrator of it, the motion should be allowed.
That is State versus Benson, Your Honor. I have got a copy for
you if I could approach.

THE COURT: Yes.

MR. PHILLIPS: I will keep going if you want me to, Your
Honor.

THE COURT: Go ahead.

MR. PHILLIPS: Okay. Now, Your Honor, let’s look at the

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essential elements that the State must - even in the light most
favorable to the State they must have substantial evidence that
Mr. Carver was the perpetrator. Now, Your Honor, you have heard
all the evidence in this case. Even if you believe - even if you
believe all the evidence that the State presented, you don’t know
who killed Ms. Yarmolenko. It is still a mystery, as we started.

The first thing that the State presented was the car
going into the YMCA, State’s Exhibit Number 10 and 11. 11:09
A.M., this was at the YMCA, and 11:10 A.M. Her body is found at

1:20 or thereabouts, sometime after 1:00. From 11:00 to 1:00 who
had access to her? Where was she? What was she doing? Who
placed the bungee cord on her neck? Who placed the ribbon on her
neck? Who placed the drawstring on her neck? There is
absolutely no nexus, no nexus whatsoever, to that evidence Mark
Carver. The only evidence in the light most favorable to the
State was at the best he touched the car. Neal Cassada touched
the car. What was the conspiracy? What did they do in
furtherance of the conspiracy, Your Honor? What did they do?
Was it a conspiracy to steal the car? Was it a conspiracy to
steal the camera out of the car? There has been no evidence that
any violence took place by Mr. Mark Carver or Neal Cassada. So
there is no conspiracy whatsoever. Even in the light most
favorable to the State. They don’t have any evidence to that.
A conspiracy, as you know, Your Honor, is that the
defendant and at least one other person entered into an

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agreement. Well, when did they do that? In the light most
favorable to the State, when did that agreement take place, Your
Honor? Was it at 12:00? Was it at 1:00? And, of course, that
agreement can be - it can be implied. It can be inferred. They
can’t do that. They don’t have that. They cannot tell you when
that agreement took place. The fact that Neal Cassada may have
touched one side of the car. Mark Carver touched the other. Did
they touch it at the same time? Did one touch it at 11:00 and
another person touched it at 1:00? Hey, Neal, go look down here,
look what I saw. That doesn’t prove murder, Your Honor. It
proves that they may have touched - in the light most favorable
to the State, they may have touched the car. What’s the
conspiracy?

That the agreement was to commit murder. Where is the
agreement to commit murder? Where is the evidence? Even if they
touched the car, even if they said I didn’t touch that car, there
is still no evidence that they agreed to kill Ms. Yarmolenko.
Murder, of course, you know is the unlawful killing of another
human being with malice. That the defendant Mark Carver and Neal
Cassada intended that the agreement be carried out at the time it
was made.

Your Honor, that brings up another point, also. State
versus Littlejohn is that - and I will leave it up to the Court,
but State versus Littlejohn stands for the proposition that a
person may not conspire with himself. One person may not be

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convicted of a criminal conspiracy when all the alleged
conspirators are acquitted except one. The one convicted is
entitled to discharge. Your Honor, of course, at the time Mr.
Cassada was alive. Today he is not. He had passed back in
October. That State versus Littlejohn, I handed that case up
yesterday and I hope you have still got it, but I will hand one
to the State in case they lost the one I gave them.

MR. STETZER: I have a copy.

MR. PHILLIPS: And I do have a copy of, Your Honor, the
dismissal of Mr. Cassada’s case. First degree murder, Your
Honor, is the defendant intentionally and with malice killed the
victim with a deadly weapon. As you recall the evidence, Your
Honor, the deadly weapon is the bungee cord, the drawstring - or
the ribbon and the drawstring. Mark Carver’s DNA is not anywhere
on there. Neal Cassada’s DNA is not on there. The State of
course - even in the light most favorable to the State, well, it
got washed off by river water if you can believe that, but her
DNA is on there. The ribbon, if he cut the ribbon as they say,
in the light most favorable to the State, well, his DNA would be
on the bag because it didn’t get wet. The ribbon on the bag did
not get wet. So there is no nexus at all between Mark Carver and
the murder weapon. None at all in the light most favorable to
the State. There must be substantial evidence to tie Mr. Carver
with the murder weapon. There is not any.

The next element, Your Honor, would be the State must

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prove that the defendant’s act was a proximate cause of the
victim’s death. What was his act? Touching the car? That’s all
they got. His act was touching the car. That’s it. That’s all
they have got. Is that the proximate cause of Ms. Yarmolenko’s
death? No. A proximate cause is a real cause, a cause without
which the victim’s death would not have occurred.

The next element, Your Honor, that the defendant
intended to kill the victim, it’s not there. That the defendant
acted after premeditation, that is, he formed the intent to kill
the victim over some period of time, however short, before he
acted. When did he do that? That the defendant acted with
deliberation, which means that he acted while he was in a cool
state of mind. Conspiracy to commit murder, there is not
substantial evidence. There is no nexus or connection between
Mark Carver and the death of Ms. Yarmolenko. Now if they want to
charge him with conspiracy to steal something out of the car,
conspiracy to take something from the car because he touched it,
you may have evidence, substantial evidence, in the light most
favorable to the State. You may then.

Your Honor, the State, of course, the doctrine of
acting in concert, they are going to talk about that and I have
got some cases on that as well. The first scenario is if this
instruction is intended for use in a case in which it is clear
that the defendant was an actual participant in the crime even
though he himself did not do all the necessary acts and that he

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acted with another person. It is not clear. What did he do? He
is fishing. He is down at the river fishing. That’s all he
does. The other evidence that the State says they have is, well,

he said back in December after May 5 , December which is six
months later or thereabouts, that, well, he knew how tall she
was. That is still not substantial evidence. That is the only
evidence they have got, touching the car and possibly knew how
tall she was, but he knew that because he saw her on TV. That is
their substantial evidence at this point, Your Honor. It is not
enough to get to the jury. That is acting in concert and that is
State versus Joyner, Your Honor. I’ve got a copy for you on this
as well.

MR. STETZER: Thank you.

MR. PHILLIPS: Yes, sir. (Handing document to the
Court)

THE COURT: All right.

MR. PHILLIPS: If I could, I will just keep going.

THE COURT: I am going to stop in a little bit and read
them.

MR. PHILLIPS: Yes, sir. They pretty much stand for the
same proposition almost but basically the next one is whether or
not it is a conspiracy, acting in concert or aiding and abetting.
Basically in all the line of cases throughout North Carolina
aiding and abetting and acting in concert are almost the same
thing. There is a little bit of difference, as the Court knows,

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but basically they all stand for the proposition that mere
presence of a person at the scene of a crime at the time of its
commission, and they can’t even prove at the time of the
commission because they don’t know what time it took place. It
does not make him a principal in the case. Mere presence at a
crime does not make him guilty. That’s State versus Beech. That
is still good law. I’ve got that case as well, Your Honor, if I
could hand that up.

THE COURT: Thank you.

MR. PHILLIPS: Yes, sir. This case is a tragedy, no
doubt about it. The fact that she passed away and died, we are
terrible for that. I mean we feel terrible for that, but Mr.
Carver didn’t do it. There is not enough evidence to let this
case go to the jury as a matter of law. There is no nexus
between the murder weapon. The State could say, well, all the
DNA was washed off. Well, Ms. Yarmolenko’s DNA wasn’t washed off
the bungee cord, the ribbon and the drawstring. There is no way
that he could touch all those items in the car, their theory, but
if it is pure conjecture on the State’s part as you have heard in
this case, you’ve not heard one scintilla of evidence how Mark
Carver hurt Ms. Yarmolenko or how he conspired with Neal Cassada
to kill Ms. Yarmolenko. Not one piece of evidence. You heard a
lot of different testimony but you never heard one piece of
evidence. Most conspiracies, Your Honor, have to do with
statements where one would tell on the other person. Well, you

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don’t have it in this case. You have got no evidence of a
conspiracy whatsoever. You have no evidence where he harmed one
hair on her head and, Your Honor, this case is still a mystery
even at this point. If in the light most favorable to the State
they have no theory whatsoever that you have even heard in this
case how Mark Carver killed her, then this case should be
dismissed and it should not go to the jury. As a matter of law
this case should be dismissed. Thank you.

MR. STETZER: Your Honor, the jury is entitled to hear
this case in the light most favorable to the State. Mr. Phillips
said that the fact that their DNA is on the car is no evidence
whatsoever. The DNA puts this defendant in incredibly close
proximity to a recently murdered girl and then the important part
is that he does the equivalent of flight which shows
consciousness of guilt. He lies about it to the police in six
different interviews, about him being there. Now Mr. Phillips
says, well, maybe he touched the car looking for something, for
stealing something. If that be the case, what we have is the
verbal equivalent of flight that took place over six months where
he lied to the police over and over and over about it. He is
this far from me and Mr. Ratchford from a recently murdered dead
girl and lies about why he is there or whether he was there at
all. The fact that Ms. Yarmolenko’s DNA is on that ligature and
not theirs, well, yes, the State does contend that when he put
her in the river the DNA from the ligature washed off. She is

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out of the river. She is still attached to those ligatures when
they are later swabbed so her DNA has a chance to get on there,
not being rinsed off from theirs.

He says from eleven to one who had access to Irina
Yarmolenko. We do know she arrived at 11:09 and she was dead
shortly after one. The testimony shows - and it is undisputed
from this defendant - that he had access. What he tells us is
that he alone with his cousin, Mr. Carver - Cassada - had access
and nobody else. Well, his statements didn’t talk about other
people being present there. What the evidence did show is a very
isolated place in a very short time period with two people there
with their DNA present and near a recently murdered dead girl. I
would say that after the inferences, in the light most favorable
to the State those should go to the jury.

THE COURT: Any rebuttal?

MR. PHILLIPS: Your Honor, we stand by the fact that it
is nothing more than pure conjecture on the part of the State and
as a matter of law should not go to the jury.

THE COURT: I will take a few minutes and read these
matters.
minutes.
Mr. Sheriff, we are going to take at least fifteen
(Whereupon, the Court took a recess and thereafter

reconvened with the defendant and all counsel present.)

THE COURT: Madam Reporter, if you would take this
entry, please. In 08 CRS 68293, the felony conspiracy to commit

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murder, the Court would allow the motion at the close of the
State’s evidence and dismiss that charge, there being no evidence
of conspiracy. As to 08 CRS 68290, based on the evidence that
has been presented, the Court finds in the light most favorable
to the State and every reasonable inference therefrom that that
motion should be denied. Does the defendant intend to offer
evidence?

MR. RATCHFORD: No, sir. The defense would rest and we
would renew the motion at the close of all the evidence.

THE COURT: Does counsel desire the Court to inquire of
Mr. Carver?

MR. RATCHFORD: Yes.

THE COURT: Mr. Carver, I am going to ask you a few
questions. First of all, you do not have to answer any of these
questions. You have the right to remain silent and anything that
you do say could be used against you to convict you, and if
convicted you would be sentenced to life imprisonment for first
degree murder. Do you understand that? I need you to answer out
loud, please, sir.

MR. CARVER: Yes.

THE COURT: All right. You have the right to present
evidence. If you so desire you may present evidence through the
testimony of others or through your own testimony or both. You
are not compelled or required to do so. That is part of your
right to remain silent. Regardless of what your decision is, it

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does affect the procedure in the trial, that is, how the trial

goes forth. Do you understand that?

MR. CARVER: Yes.

THE COURT: If you do not testify, you are entitled to
have the jury instructed that they may not use that decision or
that election to testify against you. Do you understand that?

MR. CARVER: Yes.

THE COURT: And if you do not testify and you do not
offer any evidence whatsoever, not only are you entitled to that
instruction but your attorneys have the right to make the - have
the opening and closing arguments to the jury. Do you understand
that? I need to make sure you answer out loud so the court
reporter

MR. CARVER: Yes.

THE COURT: Thank you. If you offer evidence in any
fashion, then the State would have the right to open and close,
that is, have the last argument to the jury if they so desire.
Do you understand that?

MR. CARVER: Yes.

THE COURT: Some legal scholars believe this has some
strategical advantage, that is, having the last argument. Some
don’t, but nevertheless that’s the effect. If you do testify,
the State is entitled on cross examination to inquire about any
prior criminal history you have within certain limitations, that
is, any class II misdemeanors or more serious within the last ten

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years. Do you understand that?

MR. CARVER: Yes.

THE COURT: Of course, if that occurs and you do have
prior convictions then you are also entitled to have the jury
instructed that they may not use those convictions against you to
determine your guilt or innocence. They may only use those
convictions to determine your believability or your credibility
as a witness. Do you understand that?

MR. CARVER: Yes.

THE COURT: The decision to offer evidence and to
testify is yours and yours alone. Of course, it is not to be
taken lightly and your advice of counsel is not to be taken
lightly. Do you understand, though, that it is your decision?

MR. CARVER: Yes.

THE COURT: And have you made that decision?

MR. CARVER: Yes.

THE COURT: And what is your decision?

MR. CARVER: I don’t want to.

THE COURT: You are not going to offer evidence?

MR. CARVER: No.

THE COURT: All right. That includes other witnesses as
well as yourself?

MR. CARVER: Yes.

THE COURT: All right. Has anybody promised you
anything to cause you to reach this decision?

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MR. CARVER: No.

THE COURT: Has anybody threatened you in any way to
cause you to reach this decision?

MR. CARVER: No.

THE COURT: All right. Have you discussed with your
attorneys these issues regarding testifying or not?

MR. CARVER: Yes.

THE COURT: Are you satisfied with their legal services?

MR. CARVER: Yes.

THE COURT: Do you have any questions about these things
that have just been discussed with you?

MR. CARVER: No, sir.

THE COURT: All right. Thank you, sir. You can be
seated. Madam Court Reporter, if you will take this entry. Let
the record show that out of the presence of the jury the Court
has made inquiry of the defendant. The Court is satisfied that
the defendant has, as a product of informed choice and as an
exercise of his free will, voluntarily elected not to testify or
to offer evidence, all the evidence having been presented.
Motions at the close of all the evidence?

MR. RATCHFORD: Your Honor, again at this point the
defense would renew the motion to dismiss that Mr. Phillips
argued earlier and we do not wish to be heard further.

THE COURT: All right. Anything from the State?

MR. STETZER: Not on that.

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THE COURT: At the close of all the evidence then the
Court would deny the motion. There appears to be sufficient
evidence, circumstantial and from reasonable inferences, to go to
the jury.

Pursuant to Rule 21 of the General Rules of Practice in
the Superior Court, at this time and on the record the Court will
conduct a charge conference as contemplated by that rule.
Consideration should be given to the following pattern jury
instructions by pattern jury instruction number and name for the
trial of criminal cases starting with preliminary or evidentiary
type instructions 101.05, function of the jury; 101.10, the
burden of proof including reasonable doubt; 101.15, the
credibility of witnesses; 101.20, the weight of the evidence;
101.30, the effect of the defendant’s election or decision not to
testify; 104.05, circumstantial evidence; 104.20, interested
witnesses, 104.50, illustrative photographs; 104.90, the identity
of the defendant as a perpetrator of the crime beyond a
reasonable doubt; 104.94, the testimony of expert witnesses.
What says the State?

MR. STETZER: I agree with all those. I ask the Court
to consider photographs of substantive evidence.

THE COURT: What photographs are substantive evidence?

MR. STETZER: The bank teller, Goodwill, YMCA.

THE COURT: All right. What else?

MR. STETZER: Acting in concert.

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THE COURT: I think that was —

MR. STETZER: I understand. How about on interested
witnesses what was the Court’s - if I may inquire?

THE COURT: I wrote that down.

MR. STETZER: But my question is why? I was trying to
flush out which witnesses were interested witnesses.

THE COURT: I think just about any witness testifying or
not may have some concealed or unconcealed interest in a case so
I just give it as a matter of course.

MR. STETZER: That was my question. I have no objection
to it. I just wanted to know why. On the photographs as
substantive evidence, would you be specifying which photographs?

THE COURT: That instruction within some contents - this
instruction used to actually contain video tapes which it does
contain video tapes as part of the instructions whereas if you
look at the other one which is illustrative it does not include
video tapes, and I believe that is based on the law that video
tapes, if they are offered as evidence of the event, then they
are substantive evidence, but if they are offered as evidence for
either, a, illustration or a test or an example or something like
that, then they are illustrative. So my understanding is the
Court would just say video tapes that have been introduced in
this trial may be considered by you as evidence of whatever they
illustrate or show.

MR. STETZER: Would the Court consider video tapes or

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still photographs generated therefrom, which that is the case
here?

THE COURT: The still photographs would be illustrative
of the video tape.

MR. STETZER: There was no witness that testified that
those photographs specifically say the YMCA camera would
illustrate testimony. The testimony instead was was this able to
accurately take a photograph or a video and is this a still image
from that video. That was the testimony from Mr. Kiser.

THE COURT: I think it’s splitting hairs. I don’t know
that it makes any difference. It doesn’t really matter to me.

MR. PHILLIPS: Judge, we don’t care. If that’s what he
wants, that’s fine with us.

MR. STETZER: That’s what he wants. Thank you.

THE COURT: I will make a note when I get to that
instruction. Still photographs taken from the video tape and the
video tape itself or tapes. Other requests by the State before
we get into the guts of this?

MR. STETZER: No, sir.

THE COURT: What about the defendant?

MR. RATCHFORD: Your Honor, we would request 104.10,
motive.

THE COURT: Okay. Does the State oppose that?

MR. STETZER: The State does.

THE COURT: Okay. Does counsel desire to be heard?

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MR. STETZER: No, sir.

THE COURT: I’ll grant your motion.

MR. RATCHFORD: I believe that’s all at this point.

THE COURT: What pattern instruction does the State
request?

MR. STETZER: First and second, Your Honor.

THE COURT: What’s the pattern?

MR. STETZER: Oh, I’m sorry, Your Honor. I don’t have
that in front of me.

THE COURT: 206.00, first degree murder, premeditation
and deliberation. Second degree murder, that’s a lesser included
offense. This is going to take a modification. 206.11, first
degree murder where no deadly weapon was used covering all lesser
included homicide offenses and self-defense. Self-defense is not
an issue in this case.

MR. RATCHFORD: I don’t believe there has been any proof
that there is a second degree that would qualify. We would argue
basically it is an all or nothing. No self-defense here.

THE COURT: I agree that there is no self-defense.

MR. RATCHFORD: The only difference is without
premeditation and deliberation.

MR. STETZER: And that defines the difference between
first and second, Your Honor.

MR. RATCHFORD: Exactly. I don’t think there is - I
would argue there is neither.

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MR. STETZER: It would still be an unlawful killing
which would qualify as second. I think it would be either first
or second but nothing lesser than that.

THE COURT: I tend to agree with the State since
premeditation and deliberation are not usually susceptible to
direct proof and that based on circumstantial evidence the jury
could find that it was second degree. I don’t think we can go
any lower than that. Voluntary manslaughter is killing without
malice but if you look at the definition of malice, I tend to
agree with Mr. Ratchford there, sort of an all or a nothing
thing. Either it was with malice or there was no crime.

MR. RATCHFORD: Yes, sir. So are you looking at

THE COURT: I am looking at 206.11. That is the closest
thing I can find and it is going to have to be modified to take
out voluntary manslaughter, involuntary manslaughter and self-
defense, and you would also have to take out the sixth element of
that charge which is basically where the State has to prove the
lack of self-defense. I will just have to modify it. This case
is very unusual. I will be glad to modify it and give you all a
copy of it in the morning. Then, of course, the concluding
instructions, 101.35. Now acting in concert the State has
requested. What says the defendant?

MR. RATCHFORD: There has been no evidence of concert.
Maybe presence. Other than the DNA there has been no
identification of Mr. Cassada at the scene or anything. It is

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just his DNA placed on the car even in the light most favorable
to the State. There has been no statements as far - there was a
statement, I believe, used by Mr. Carver that he was there but as
to when - he was not there when the police arrived or identified
by no one else.

THE COURT: Acting in concert, I don’t believe there is
sufficient evidence.

MR. STETZER: Your Honor didn’t give me a chance to be
heard on that.

THE COURT: I thought you said you didn’t want to be
heard.

MR. STETZER: Oh, no, sir. I would like to be heard.

THE COURT: All right. What do you be heard about?

MR. STETZER: About acting in concert. The State just
decided that with the inferences to the state that there is
sufficient evidence on Mr. Carver. The testimony - the evidence
is that Mr. Carver and Mr. Cassada were together throughout this
time. He said he was with me the whole time. The evidence is
that the DNA from the second defendant is mere proof of his
presence. The first defendant also in close proximity to the
recently deceased person. That defendant was not anywhere to be
found when they got there which would constitute or could
constitute an inference of evidence of flight.

We contend and we will argue to the jury that from the
evidence the car was pushed down the hill and it would take more

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than one person. We contend and the evidence from the medical
examiner supports that this attack was overwhelming and sudden
and they brought out there were no defensive injuries on Ms.
Yarmolenko. We believe that the inference in the light most
favorable to the State would be that she was being restrained by
two people. We believe the evidence supports and the medical
examiner’s testimony supports that. To get the initial ligatures
on this person it would require the restraint of a second person.
We believe the evidence is clear throughout this that two men
were involved in this attack. The only two men in proximity with
access in the very limited time frame in the very limited
proximity was this defendant and the co-defendant. So I would
strongly argue in favor of acting in concert because that’s the
theory of how this went down from the State.

MR. PHILLIPS: Judge, and I would argue he’s talking
about a limited time frame. He has no idea. Dr. Nguyen
testified he didn’t know when the time of death was. The body
was found at 1:20. They don’t know when she expired. They don’t
know when she died. If you recall that testimony, he couldn’t
pinpoint a time of death. Also, you don’t know what time she got
there. It is nothing more than conjecture by the State and they
are coming up with some theory at this point, Judge, and they
should not be allowed to argue - well, they can argue whatever
they want to or whatever the Court allows them to, but we are
asking you not to give them fuel to argue that because there is

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no evidence that supports that and should not be allowed to be
instructed on acting in concert. The conspiracy is gone because
there is no evidence and this is the same thing.

THE COURT: I have to agree with the defense on this.
The instruction itself says if two or more persons join in a
common purpose to commit the crime and there is no evidence of
that.

MR. STETZER: If I may. I don’t want to antagonize the
Court but I would like to address this with some case law,
specific issues with this. There are cases dealing with the mere
presence and that he doesn’t have to do any particular acts,
especially when there is a special relationship between the two
folks. These are cousins in this case and spend all that time
together. As far as the time frame, the substantive evidence we
talked about earlier was Ms. Yarmolenko alive at Goodwill, alive
at the bank, and her car coming through at 11:09 so this is a
compressed time frame. So I would say that there is certainly
evidence from which we should be allowed to at least argue and
leave it in the jury’s capable hands about whether this defendant
acted in concert with the other defendant.

MR. PHILLIPS: There is nothing on that jury instruction
that said if they are cousins we can act in concert. If there is
a case, where is the case? It’s not on the jury instruction. It
is not cited any type of special cases on there and, Judge, it is
not appropriate.

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THE COURT: I am going to deny the request for acting in
concert. I am not going to prohibit you from arguing that they
were there, that they were both there, and whatever your theory.
I am not going to prevent you from arguing your theory of the
case. I am just not going to instruct the jury on acting in
concert for the reasons given.

MR. STETZER: Yes, Your Honor.

THE COURT: I am not going to thwart your argument on
what your theory of the case is and how it happened. Okay.
Let’s talk about - any other requests for special instructions,
et cetera?

MR. STETZER: No, sir.

MR. RATCHFORD: No, sir.

THE COURT: Madam Court Reporter, let your record show
that the Court has conducted a charge conference required by Rule
21 of the General Rules of Practice in the Superior Court on the
record as required by those rules and would give those
instructions as heretofore indicated. Oral arguments. The
defendant would have the opening and closing. I indicated when
we met earlier that I would give each attorney the opportunity to
argue so start with the defendant. You want to open and close?

MR. PHILLIPS: Yes, sir.

THE COURT: Okay. Who is going to go first?

MR. PHILLIPS: I will do the opening and Mr. Ratchford
will do the closing.

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THE COURT: All right. So you are going to open up and
then the State’s attorneys and then Mr. Ratchford will be the
final.

MR. RATCHFORD: Yes, sir.

MR. PHILLIPS: Yes, sir.

THE COURT: Which of you desires to argue first?

MS. HAMLIN: I think we are leaving it all up to Mr.
Stetzer.

THE COURT: Okay. So the State is going to get off with
one argument?

MR. STETZER: Yes, sir.

THE COURT: All right. Now about the exhibits that
have been offered and admitted, I think I will wait until a
request comes to see what they want before I ask you if you
consent to them going back to the jury room. Usually I do that
in advance but the nature of this evidence is such that they
might ask for photographs. If they want video tapes, I would
require them to come in and watch them in the courtroom. What
about just the still photographs if they request those? Does
counsel consent?

MR. STETZER: The State doesn’t have an objection to
just sending them back.

MR. RATCHFORD: As to the photographs, no, Your Honor.
As to the other items, I think that should be done in court such
as the alleged weapons.

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THE COURT: All right. I tend to agree with you. The
still photographs, whether made from the video tape or whether
they were taken by - regardless of who they were taken by,
counsel is okay with that?

MR. RATCHFORD: Yes, sir.

MR. STETZER: Yes, sir.

THE COURT: Okay. Anything else?

MR. STETZER: What is the Court’s intention as for
timing of arguments? I mean by that both when and how long?

THE COURT: Well, we are going to start in the morning
because I don’t have the pattern ready yet. I think you are
entitled to see what the pattern I was going to submit. That
will take an hour or so to put that together and I have got to
have access to a printer and that’s at home with this computer.
Argue as long as you want to.

MR. STETZER: Thank you, sir, and if we change our mind
as far as both DA’s arguing, would that be

THE COURT: Just let me know in the morning.

MR. STETZER: Yes, sir.

THE COURT: As far as the length of argument, I think
the maximum - I can’t remember if it is an hour or two hours, but
if you argue that long you usually lose them, anyway. Sheriff, I
need to bring the jury back and talk to them a minute.

(Whereupon, the jury returned to the courtroom.)

THE COURT: Let the record show the jury is seated in

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the jury box. First of all, I apologize for the delay in
returning you to the courtroom. There were matters that the
Court did need to take up that did not require your
consideration. Will there be evidence for the defendant?

MR. RATCHFORD: No, sir, Your Honor. The defense rests.

THE COURT: Members of the jury, in this case the
defendant has not testified or offered any evidence and the law
of North Carolina as well as the United States gives every person
this privilege. This same law also assures every defendant that
an election or decision not to testify does not create any
presumption against the defendant and therefore his election is
not to influence your decision in any way. Further, you are not
to assess or consider any reasons why he may have made this
election for such would be based on conjecture or speculation on
matters outside the record, and to consider matters outside the
record would be a violation of your oath as a juror. We will
recess until in the morning. In the morning the attorneys will
have the opportunity to make their final summations or closing
remarks.

While you are in recess you are not to let your minds
be made up about the case. You are not to talk about the case
and you are not to have any contact or communication with any
attorney, party, witness or other person who might be interested
in the case. Also you are not to visit the scene for the purpose
of making any type of investigation. You are not to make any

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type of investigation or inquiry of any matters. You are not to
read, watch or listen to any media accounts of this trial. Again
we will resume at 9:30. If anyone does contact you or attempt to
make contact with you, please let the courtroom sheriff know
first thing in the morning. Thank you for your attention and
your patience. Sheriff, you may escort the jurors from the
courtroom.

(Whereupon, the jury left the courtroom and the Court
took an overnight recess.)

353

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF GASTON 08 CRS 68290

STATE OF NORTH CAROLINA, )
)
VS )
)
MARK BRADLEY CARVER, )
)
Defendant. )
)

TRANSCRIPT OF TRIAL

MARCH 18, 2011

PAGES 354 - 397

VOLUME V OF V

MITZY BONDURANT
OFFICIAL COURT REPORTER
325 NORTH MARIETTA STREET, SUITE 4135
GASTONIA, NC 28052
(704) 852-3173

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I N D E X

Jury Charge Page 360

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March 18, 2011 at 9:30 A.M.

(The following proceedings were held in open court with
the defendant and all counsel present.)

THE COURT: There are two things prior to arguments that
will need to be taken up. Juror number two, Mr. Adams, had told
the sheriff this morning that he was approached at work by
somebody unrelated to the case, a co-worker, who made statements
to him and Mr. Adams apparently did the right thing. He held his
hands up and told him to shut up, leave him alone, be quiet.
After making a few statements the guy did. He said the guy was
an idiot or something like that.

BAILIFF: That was his description.

THE COURT: But I wanted to let you know that and see if
you wanted to bring Mr. Adams in and question him about that.
According to what the sheriff said, the sheriff told him, and I
agree, that he did the right thing. He told the guy to be quiet
and backed off but I will leave it up to counsel whether or not
you want to make an inquiry.

MR. RATCHFORD: The defense does not, Your Honor.

MR. STETZER: The State does not, sir.

THE COURT: Okay. The second issue - here is a copy of
the proposed charge. Basically the only thing that was done was
take out voluntary and involuntary manslaughter, take out self-
defense, and substituted the word victim for the deceased’s name.
Is that satisfactory?

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MR. RATCHFORD: Yes, sir.

THE COURT: The only thing I saw that I didn’t like
about the charge was in the final mandate and I went back and
checked the original charge when I went through. It is somewhat
redundant. It doesn’t make things flow smoothly. It says in the
final mandate acting with malice killed and thereby proximately
causing death. I am sitting there thinking, well, if you killed
somebody isn’t that proximately causing death. Nevertheless, I
went back and checked the original pattern and that’s what it
says. Let’s see. Again the order of arguments, Mr. Phillips,
you are going first?

MR. PHILLIPS: Yes, sir.

THE COURT: Then Mr. Stetzer?

MR. STETZER: Yes, sir.

THE COURT: And Ms. Hamlin is not going to argue?

MR. STETZER: That’s correct.

THE COURT: So, Mr. Ratchford, you will follow?

MR. RATCHFORD: Yes, sir.

THE COURT: Okay. Anything else?

MR. STETZER: Not from the State.

MR. RATCHFORD: No, sir.

THE COURT: Sheriff, if you will return the jury,
please.

(Whereupon, the jury returned to the courtroom)

THE COURT: Good morning.

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JURY: Good morning.

THE COURT: Welcome back. Members of the jury, at this
time the attorneys have the opportunity to make their final
summations or closing remarks. What they state is not evidence
in the case and shouldn’t be considered by you as such. However,
what they say may help you to analyze and evaluate the evidence.
The attorneys are permitted to characterize the evidence in an
attempt to persuade you to a particular verdict but they may not
inject personal experiences or even express a personal belief as
to the guilt or innocence of the defendant.

If an attorney attempts to restate a portion of the
evidence and your recollection of that evidence is different from
that of the attorney, you are to be guided exclusively by your
own recollection in recalling and remembering the evidence. The
order of arguments will be Mr. Phillips first followed by Mr.
Stetzer and then followed by Mr. Ratchford. You are not to let
your minds be made up about this case until such time as the
Court directs you to begin your deliberations. You are not to
infer that one party has an advantage over another by virtue of
the procedure the Court uses, not only in conducting the trial
but the order of arguments. You are to base whatever verdict you
return on the evidence and law that is given to you, the evidence
you have heard in the courtroom and the law that is about to be
given to you. What says the defendant?

MR. PHILLIPS: Thank you, Your Honor.

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(Whereupon, Mr. Phillips, Mr. Stetzer and Mr. Ratchford
presented their closing arguments to the jury. Thereafter, the
Court took a morning recess and then reconvened with the
defendant, all counsel and the jury present.)

(Go to next page for the charge)

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JURY CHARGE

Members of the jury, all of the evidence has been
presented. Now it is now your duty to decide from this evidence
what the facts are and then you must then apply the law that the
Court is about to give you to those facts. It is absolutely
necessary that you understand and apply the law as the Court
gives it to you and not as you think it is or might like it to
be. This is important because justice requires that everyone
being tried for the same offense be treated in the same way and
have the same law applied to him or her.

The defendant, Mr. Carver, has entered a plea of not
guilty. The fact he has been charged is not any evidence or
proof of guilt. Under our system of justice, when a defendant
pleads not guilty, the defendant is not required to prove his
innocence. He is presumed to be innocent. The State must prove
to you that the defendant is guilty beyond a reasonable doubt.

A reasonable doubt is a doubt that is based on reason
and common sense that arises out of some or all of the evidence
presented or the lack or insufficiency of the evidence as the
case may be. Proof beyond a reasonable doubt is proof that fully
satisfies or entirely convinces you of the defendant’s guilt.
There is not any burden or any duty of any kind upon the
defendant.

You alone are the sole judges of the credibility, that
is, the believability of each witness. You must decide for

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yourselves whether to believe the testimony of any witness. You
may believe all, any part or none of what a witness says on the
stand. In determining whether or not to believe such a witness,
you should apply the same tests of truthfulness that you would
use every day in your own affairs. As applied to this trial,
these tests may include, but are not limited to, the opportunity
of the witness to see, hear, know or remember the facts or
occurrences about which the witness testified, the manner and
appearance of the witness, any interest or bias or prejudice the
witness may have, the apparent understanding and fairness of the
witness, whether the testimony of the witness is reasonable and
whether the testimony of the witness is consistent with the other
believable evidence in the case.

You are also the sole judges of the weight to be given
to any evidence, and this means that if you decide that certain
evidence is believable you must then determine its importance in
light of all the other believable evidence in the case.

Also in this case the defendant has not testified. The
law of North Carolina gives every person this privilege and this
right. This same law also assures every defendant that an
election or a decision not to testify does not create any
presumption against the defendant. Therefore, his election is
not to influence your decision in any way. You are also not to
assess or consider any reasons why he may have made this election
for such would be based on speculation or conjecture or matters

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outside of the record which you are not permitted to do.

There are, however, two types of evidence from which
you may find the truth as to the facts of a case, direct and
circumstantial. Direct evidence is testimony of one who asserts
actual knowledge of a fact such as an eye witness.
Circumstantial evidence is proof of a chain or group of facts
indicating the guilt or innocence of the defendant. The law does
not make any distinction between the weight, that is, the
importance, to be given to either circumstantial evidence or
direct evidence. There is not any greater degree of certainly
required of circumstantial evidence than of direct evidence. You
are to weigh all the evidence in the case and after weighing all
the evidence if you are not convinced of the guilt of the
defendant beyond a reasonable doubt, then it is your duty to
return a verdict of not guilty.

You may find that a witness is interested in the
outcome of this trial. In deciding whether or not to believe
such a witness, you may take the interest of the witness into
account, and if after doing so you believe the testimony of that
witness in whole or in part you should treat what you believe the
same as any other believable evidence in the case.

Also in this case certain photographs and maps have
been introduced into evidence for the purpose of illustrating or
explaining the testimony of a witness. These are not substantive
or direct evidence. In other words, they haven’t been received

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-363

to prove any fact in the case. You may consider this evidence
for the purpose of illustrating or explaining the testimony of a
witness to the extent that you find that it does so. You may not
use these or consider these for any other purpose.

Also in this case certain video tapes and still
photographs taken from video tapes have been received into
evidence. Now you may consider these as evidence of what you
find that they do, in fact, illustrate. In other words, you may
use these as substantive evidence. Your consideration of that
evidence is not limited to illustrating or explaining the
testimony of a witness.

Proof of a motive for a crime is permissible and often
valuable but is never essential for a conviction. If you are
convinced beyond a reasonable doubt that the defendant committed
the crime, the presence or the absence of motive is immaterial.
Motive, however, may be shown by facts surrounding the act if
they support a reasonable inference of motive. When thus proven
motive becomes a circumstance to be considered by you. Equally
the lack of a motive is a circumstance to be considered on the
side of innocence.

The Court further instructs you that the State has the
burden of proving the identity of the defendant as the
perpetrator of the crime charged beyond a reasonable doubt. This
means that you, the jury, must be satisfied beyond a reasonable
doubt that the defendant was the perpetrator of the crime charged

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before you may return a verdict of guilty.

In this case you have heard evidence from witnesses who
have testified as what we call expert witnesses. An expert
witness is merely a witness who is permitted to testify in the
form of an opinion in a field where the witness purports to have
specialized skill or knowledge. As you are now aware, you alone
are the sole judges of the credibility, that is, the
believability of each witness and the weight or the importance to
be given to the testimony of each witness. In making the
determination as to credibility and weight of an expert witness,
you should consider, in addition to the other tests of
credibility and weight the witness’ training, qualifications and
skills or the lack thereof, the reasons, if any, given for an
opinion, whether the opinion is supported by facts that you find
from the evidence, whether the opinion is reasonable and whether
it is consistent with the other believable evidence in the case.
You should consider the opinion of an expert witness but you are
not bound by it. In other words, you are not required to accept
an expert witness’ opinion to the exclusion of the facts and
circumstances that are disclosed by other testimony.

In this case the defendant has been charged with first
degree murder. Under the law and the evidence in this case it is
your duty to return one of the following verdicts: Guilty of
first degree murder or guilty of second degree murder or not
guilty. You will find on your verdict sheet that is contained in

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that envelope those three options typewritten on your verdict
sheet.

You are also permitted during the course of these
instructions to take notes because crimes have what we call
elements and the State must prove each element beyond a
reasonable doubt and sometimes the elements are lengthy.

First degree murder is the unlawful killing of a human
being with malice and with premeditation and with deliberation.
Second degree murder is the unlawful killing of a human being
with malice but without premeditation and without deliberation.
For you to find the defendant guilty of first degree murder, the
State must prove five things beyond a reasonable doubt.

First, that the defendant intentionally and with malice
killed Irina Yarmolenko. Now malice means not only hatred, ill
will or spite as it is ordinarily understood, but it also means
the condition of the mind which prompts a person to take the life
of another intentionally or to intentionally inflict serious
injury upon another which proximately results in death without
just cause, excuse or justification.

Second, the State must prove beyond a reasonable doubt
that the defendant’s acts were a proximate cause of Ms.
Yarmolenko’s death. A proximate cause is a real cause, a cause
without which the death would not have occurred.

Third, that the defendant intended to kill Ms.
Yarmolenko. Intent is a mental attitude seldom provable by

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direct evidence. It must ordinarily be proved from circumstances
from which it may be inferred. An intent to kill may be
inferred from the nature of the defendant’s act, the manner in
which it was made, and other relevant circumstances that you find
from the evidence.

Fourth, that the defendant acted with premeditation;
that is, he formed the intent to kill over some period of time,
however short, before he acted.

Fifth, that the defendant acted with deliberation which
means that he acted while he was in a cool state of mind. This
does not mean that there had to be a total absence of passion or
emotion. If the intent to kill was formed with a fixed purpose,
not under the influence of some suddenly aroused violent passion,
it is immaterial that the defendant was in a state of passion or
excited when the intent was carried into effect.

Now neither premeditation nor deliberation is usually
susceptible of direct proof. It may be proof of circumstances
from which they may be inferred such as the brutal or vicious
circumstances of the killing or the manner in which or by which
the killing was done.

Second degree murder differs from first degree murder
in that neither specific intent to kill, premeditation nor
deliberation is a necessary element. For you to find the
defendant guilty of second degree murder, the State must prove
beyond a reasonable doubt that the defendant unlawfully,

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intentionally and with malice wounded Ms. Yarmolenko, thereby
proximately causing her death.

So, members of the jury, if you find from the evidence
beyond a reasonable doubt that on or about the alleged date the
defendant acting with malice killed Irina Yarmolenko and thereby
proximately caused her death, and that the defendant intended to
kill her, and that the defendant acted after premeditation and
with deliberation, it would be your duty to return a verdict of
guilty of first degree murder.

If you do not so find or if you have a reasonable doubt
as to either one or more of those five things, you would not
return a verdict of guilty of first degree murder. If you do not
find the defendant guilty of first degree murder, then you must
consider whether or not the defendant is guilty of second degree
murder.

If you find from the evidence beyond a reasonable doubt
that on or about the alleged date the defendant intentionally and
with malice wounded Irina Yarmolenko and thereby proximately
caused her death, it would be your duty to return a verdict of
guilty of second degree murder.

If you do not so find or if you have a reasonable doubt
as to any one or more of those things, then it is your duty to
return a verdict of not guilty.

Members of the jury, you have heard the evidence and
the arguments of counsel. The Court has not reviewed the

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evidence or summarized it for you. It is your duty to remember
the evidence, whether or not it was brought to your attention by
the attorneys in their speeches to you. If your recollection of
the evidence is different from that of the attorneys, you are to
be guided exclusively by your recollection in recalling and
remembering the evidence.

The Court has not reviewed the contentions of the State
or the defendant but it is your duty not only to consider the
contentions and positions urged by the attorneys to you, but any
other inference that you find arises from the evidence, to weigh
all this in light of your common sense as best you can to
determine the truth in this matter.

Each of you was selected and sworn to serve as a juror
to find the truth in this case from the facts and evidence
presented and to render a verdict reflecting the truth as you
find it. You are to perform this duty fairly and objectively
without any bias or prejudice. You are not to be swayed by pity
or sympathy or partiality or public opinion. You are not to
concern yourself with whether or not your verdict pleases the
Court or anybody else for that matter. You are expected to
carefully and fairly consider the evidence, follow the law as
given to you by the Court and reach a just verdict.

It is the Court’s duty to preside over the trial and
ensure it is conducted according to established rules of law,
evidence and procedure. The law, as indeed it should, requires

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that the presiding judge be impartial and express no opinion as
to the facts. Therefore, you are not to draw any inference from
any ruling that the Court has made that the Court has an opinion
or has intimated an opinion. You are not to let any inflection in
my voice or expression on my face or anything else I might have
said or done during this trial influence you as to whether or not
any fact has or has not been proven, whether any witness should
be believed or disbelieved or what your findings ought to be.
That is exclusively your province and your duty to find from the
evidence presented the facts and to render a verdict reflecting
the truth as you find it.

A verdict isn’t a verdict until all twelve of you agree
unanimously as to what your decision shall be. You may not
return any verdict by taking a majority vote. We do not have a
democracy in the jury room. You have got to have a shutout,
twelve to nothing. Mr. Patton and Ms. Parks, you see that all
the other jurors made it through the trial. We are thankful
nothing happened to anybody, but you will not be permitted to
return with your fellow jurors to the jury room to deliberate.
As I’ve often said, you got invited to the party but you are not
going to get to dance. Do you have any personal matters in the
jury room you need to retrieve?

MR. PATTON: No.

THE COURT: Ms. Parker?

MS. PARKER: Yes.

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THE COURT: You do? All right. As soon as you are
excused from the jury box I will let you go back there and get
those. Once you are excused from the jury box you are free to
stay if you so desire or if you want to leave you are free to
leave. You are not prohibited from talking about the case once
you have been excused. You are free to talk about the case if
you want to. I would caution you to make sure that any
statements you make are truthful and honest and ones that you
would not be scared to repeat in court if necessary, but we do
thank you for your attention. I don’t know if you took notes or
not. If you have got notes in any books that we provided, if you
will just tear those notes from the book so that we can use the
notebooks in future trials. We would appreciate that. Sheriff,
what do you want them to do with their jury tags?

BAILIFF: They can just leave them right there.

THE COURT: Okay. If you will just put your jury tag in
your seat. Thank you. Ms. Parker, you are free to go back to
get your personal items. Mr. Patton, again you are free to leave
or you are free to stay, whatever you want to do.

Let the record show that the alternate jurors have been
excused and exited the jury box. Members of the jury, when you
retire you are to begin first with the selection of one of your
members to serve as your foreperson to lead you in your
deliberations. Do not begin your deliberations until your
foreperson has the verdict sheet that is contained in that

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envelope. Once you select your foreperson, have your foreperson
knock on the jury room door and the sheriff will deliver to you
the verdict sheet. He will also give to you a remote control
device that operates the light on that box. As I am given to
understand, if you press the button once the light will come on.
If you press it twice, it defaults. Is that accurate?

BAILIFF: That’s correct.

THE COURT: So when you press it, just press it once and
then the sheriff will come knock on your door to see what you
need. You are not to ask the sheriff about the case. If you
have any questions that you need answered, have your foreperson
write the question down, deliver the question in written form to
the sheriff. He is not permitted to answer your questions. He
will just tell you to write it down. If necessary we will return
you to the courtroom to answer your question. If you take a
recess outside the jury room during the course of your
deliberations, you may not talk about the case outside of the
jury room. You must all twelve be present inside the jury room.
While you are outside the jury room the rules that we have given
you are still in effect. You can’t talk about the case outside
the jury room, as I just said. You still cannot have any contact
or communication with any participant, read, watch or listen to
any media accounts, make any type of independent investigation or
inquiries about these matters.

Once you have reached a unanimous verdict on the

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verdict sheet when you get it, you will see beside each of your
possible verdicts is a set of brackets or parentheses. Have your
foreperson mark in the appropriate parentheses a check or X or
some indication to show what your unanimous verdict is. Make
sure your foreperson dates and signs the verdict sheet. That
will be the first thing to check. When you come back into the
courtroom be sure it is dated and signed because it is not a
verdict unless it is, and then without revealing your verdict
just indicate to the sheriff that you have reached a verdict.
Keep the verdict sheet. He will inform the Court that you have
reached a verdict and we will reassemble and return you to the
courtroom to pronounce it.

Our normal lunch time is about forty minutes away. I
will go ahead and let you start your deliberation. What I would
like to know, though, is do you want to take your lunch or do you
just want me to let you go deliberate until you are ready to take
a break and you send a note telling me you want to take a break.
What’s your pleasure?

JUROR: Why don’t we select our foreperson and then take
our lunch and then start deliberation?

THE COURT: That’s fine. I will do that. All right. I
will let you retire to the jury room to select your foreperson.
Thank you for your attention. Oh, one other question. How long
do you want for lunch? I always ask jurors that when they go out
to deliberate. You want your hour and a half? You want an hour?

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How much? Two hours? Rest of the day or what?

JUROR: The normal time.

THE COURT: Hour and a half. Okay. We will just take
an hour and a half from twelve o’clock - how about that - until
one-thirty. Is that all right?

(Jury indicates yes)

THE COURT: All right. I will let you go select your
foreperson.

(Whereupon, the jury left the courtroom at 11:50 A.M.)

THE COURT: Are there any corrections or additions or
requests regarding the charge from the State?

MR. STETZER: There are not from the State, Your Honor.

THE COURT: From the defendant?

MR. RATCHFORD: No, sir.

THE COURT: As soon as they have a foreperson we can go
ahead and recess because as soon as I get word they got the
foreperson I am not going to send the verdict sheet back until
after they get back from lunch.

(Whereupon, the Court was advised by the bailiff that
the jury had selected a foreperson.)

Sheriff, we can go ahead and recess until 1:30.

(Whereupon, the Court took a lunch recess from 11:52
until 1:30 and thereafter reconvened with the defendant and all
counsel present. The verdict sheet was sent to the jury and they
began their deliberations. Thereafter, the Court received a note

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from the jury at 2:23 P.M.)

THE COURT: I have this note from the jury and it is
multi subject. It says, “We would like photographs showing her
dress wet.” State’s 26 is the largest photograph regarding that
but there are others and they may be covered by their request in
item number five and that is pictures of the ligatures around the
neck, and that is shown in State’s 46, 45, 37, 34, 24, 32 and 26.
Two of those are autopsy photographs. Their item number two is
two photographs of the car in the YMCA parking lot. They
actually wrote Exhibits 10 and 11 on there. Their item number
three, Mr. Carver’s statement, which is State’s 12, and also the
statement of Mr. Lovelace, State’s 1. Those are going to be the
easiest things to handle. What says the State?

MR. STETZER: No objection to any of those things. I
ask the Court to consider on State’s 25 we admitted the CD and
the print copies that we do it on the TV.

THE COURT: I’m sorry. State’s 25?

MR. STETZER: Yes, sir. You said that was one of the
photos showing Ms. Yarmolenko’s dress being wet.

THE COURT: I did not say 25. I said 26.

MR. STETZER: The photographs of that request, whatever
numbers they may be, we would ask that they show those on the
projector.

THE COURT: I will be more than glad for counsel to go
through them and make sure I’ve got what they requested. You

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said that State’s 25 is one or you just misunderstood?

MR. STETZER: I just misunderstood you, Your Honor.

THE COURT: What says the defendant regarding those?

MR. PHILLIPS: Judge, they are not asking to see it on
the TV. If they would ask to see it on the TV, they would ask to
do that. So we would ask you just to send the photographs back.

THE COURT: No, no. They didn’t ask to see it on the TV.
They just asked to

MR. PHILLIPS: Right. I know. The State is asking it
be shown on TV from what I understand.

MR. STETZER: Yes, that is how they were published. We
admitted the disc with the pictures as well as the hard copies of
the pictures, or we can make this equipment available to them and
do it here in the courtroom.

MR. PHILLIPS: But they are not asking for that. They
are asking for photographs.

THE COURT: They want to know if they can have them back
in the jury room. Is the State opposed to that?

MR. STETZER: Of course not.

THE COURT: Okay. All right. That was the question.
Their next request is can we have a copy of the law. Normally I
don’t do that but since this instruction was hand drafted there
is one or two grammatical errors in it I found going through it,
but I don’t have any opposition to sending it back. What says
the State?

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MR. STETZER: I would ask the Court just to read the
instructions to the jurors again unless they place too much
emphasis on one part or another with typographical errors or
otherwise.

MR. RATCHFORD: We would not oppose it going back, Your
Honor.

THE COURT: All right. Of course, for anything to go
back it takes the consent of both sides, and in all probability
they are coming into the courtroom anyway because of the next
question. “Are we still to consider acting in concert?” Of
course, the Court didn’t instruct them on acting in concert so it
would be - it would probably be appropriate to go ahead and read
the instruction to them and tell them that the law that they are
to consider is the law that the Court has given them without
stepping into that minefield.

MR. STETZER: That would be acceptable to the State.

MR. RATCHFORD: Yes, sir.

THE COURT: The next request, “We would like to have a
dictionary.”

MR. STETZER: We have one but I don’t think it would be
appropriate to take it back to the jury.

THE COURT: What says the defendant?

MR. RATCHFORD: No, sir. I have to agree with the
State.

THE COURT: And I agree with each of you. I would

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instruct them, however, that ordinary terms are given their
ordinary meanings as used in common everyday language. Is the
State opposed to that?

MR. STETZER: No, sir.

MR. RATCHFORD: No, sir.

THE COURT: And their last request is the map of the
lake which is State’s 9.

MR. RATCHFORD: We would consent, Your Honor.

MR. STETZER: We would not consent, Your Honor.

THE COURT: Would not consent?

MR. STETZER: That’s correct.

MR. RATCHFORD: We would ask that it be shown in the
courtroom, then.

THE COURT: I will grant the motion and let it be shown
in the courtroom then. Sheriff, would you return the jury to the
courtroom?

(Whereupon, the jury returned to the courtroom at 2:28
P.M.)

THE COURT: Members of the jury, regarding your request,
with respect to the photographs of the wet dress, the automobile
in the parking lot, Mr. Carver’s and Mr. Lovelace’s statements,
the pictures of the ligatures, those will be sent back to you
when you leave the courtroom. The Court, however, would instruct
you as follows as to your other requests.

The Court is going to reinstruct you or reread to you

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the law that is sent back to you. There are some items in there
that are not proper in the charge and you didn’t hear them and
you don’t need to see them. So I will read it again to you. The
law that the Court gives you is the law that you are to follow
and to apply. That is the only law that you are to consider in
response to your request as to what you are to consider. So I
won’t send a copy of the law back to you but I will read it again
for you and if you need it read again I will read it as many
times as you want to hear it read.

With respect to the request to have a dictionary, that
request will be denied in the Court’s discretion. Ordinary terms
are to be given their ordinary meanings as used in everyday
common language. If there are special terms, then they are to be
given a special meaning but any special meanings that you should
apply to any specific or special terms would have or should have
been given to you during the course of the evidence. You are to
recall the evidence as it was presented regarding any special
terms, but ordinary meanings, ordinary words, are given their
ordinary meanings that you would use in common everyday language.

As to the map, you will not be permitted in the Court’s
discretion to take that back but I will let you look at it here
in the jury room after we instruct you on the law. When you have
asked for a copy of the law, first of all, I am assuming you are
wanting the law as it relates to the charge and not as to all the
other instructions of law about evidence and other matters but if

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you want that I will give it all to you. I am assuming from your
question - that’s a dangerous thing to do - I assume that you
want the law on first and second degree murder and not guilty
read again as opposed to circumstantial and direct evidence,
motive, and those things. You are nodding your heads up and down
yes. I gather that is the consensus, yes; is that correct? If
that is correct, would you raise a hand so I will know for sure
that is correct. Thank you. All twelve jurors have raised their
hand.

First of all, members of the jury, the defendant has
been charged with first degree murder. Under the law and the
evidence in this case it is your duty to return one of the
following verdicts, guilty of first degree murder or guilty of
second degree murder or not guilty.

First degree murder is the unlawful killing of a human
being with malice and with premeditation and with deliberation.
Second degree murder is the unlawful killing of a human being
with malice but without premeditation and deliberation. For you
to find the defendant guilty of first degree murder, the State
must prove five things beyond a reasonable doubt.

First, that the defendant intentionally and with malice
killed Irina Yarmolenko. Malice means not only ill will, hatred
or spite as it is ordinarily understood, but it also means the
condition of the mind which prompts a person to take the life of
another intentionally or to intentionally inflict serious injury

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upon another which proximately results in death without just
cause, excuse or justification.

Second, the State must prove that the defendant’s acts
were a proximate cause of Ms. Yarmolenko’s death. A proximate
cause is a real cause, a cause without which the death would not
have occurred.

Third, the State must prove beyond a reasonable doubt
that the defendant intended to kill Ms. Yarmolenko. Intent is a
mental attitude seldom provable by direct evidence. It must
ordinarily be proved by circumstances from which it may be
inferred. An attempt to kill may be inferred from the nature of
the defendant’s act, the manner in which it was made, and other
relevant circumstances that you find from the evidence.

Fourth, the State must prove beyond a reasonable doubt
that the defendant acted with premeditation; that is, he formed
the intent to kill over some period of time, however short,
before the act.

Fifth, that the defendant acted with deliberation which
means that he acted while he was in a cool state of mind. This
does not mean that there had to be a total absence of passion or
emotion. If the intent to kill was formed with a fixed purpose
not under the influence of some suddenly aroused violent passion,
it is immaterial that the defendant was in a state of passion or
excited when the intent to kill was carried into effect.

Neither premeditation or deliberation is usually

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susceptible of direct proof. It must be proven by proof of
circumstances from which they may be inferred such as the brutal
or vicious circumstances of the killing or the manner in which or
the means by which the killing was done.

Members of the jury, again the Court instructs you that
the State also has the burden of proving that the defendant is
the perpetrator of the crime charged beyond a reasonable doubt,
and this means that you, the jury, must be satisfied beyond a
reasonable doubt that the defendant was the perpetrator of the
crime charged before you may return a verdict of guilty.

So, members of the jury, if you find from the evidence
presented beyond a reasonable doubt that on or about the alleged
date the defendant acted with malice, killed Irina Yarmolenko and
thereby proximately caused her death, and that the defendant
intended to kill her and that the defendant acted after
premeditation and with deliberation, it would be your duty to
return a verdict of guilty of first degree murder.

If you do not so find or if you have a reasonable doubt

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as to any one or more of those things, you would not return a
verdict of guilty of first degree murder but then you must
consider whether or not the defendant is guilty of second degree
murder. If you find from the evidence beyond a reasonable doubt
that on or about the alleged date the defendant intentionally and
with malice wounded Ms. Yarmolenko, thereby proximately causing
her death, it would be your duty to return a verdict of guilty of
second degree murder. If you do not so find or if you have a
reasonable doubt as to any one or more of those things, it would
be your duty to return a verdict of not guilty.

Mr. Sheriff, I will let you hand this map to the jury.
I see you have got a hand up and I am assuming you have got a
question. I am going to ask that you write that question down
and deliver that to the sheriff after you have retired. I don’t
want to get into a discussion with you in the courtroom. You may
retire and resume your deliberations.

(Whereupon, the jury returned to the jury room at 2:43
P.M.)

THE COURT: Let the record show the jury has left the
courtroom. Any requests for additions or corrections to the
charge from the State?

MR. STETZER: No, sir.

THE COURT: From the defendant?

MR. RATCHFORD: No, sir.

THE COURT: All right. Thank you. We may have another

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question coming.

(Whereupon, the Court received another note from the
jury.)

THE COURT: It took me a few minutes to figure out what
they were talking about. The note says, “Please read the murder
charge as relates to the evidence or lack thereof.” They are
talking about reasonable doubt, what is reasonable doubt. Or it
could be considering an expert witness’ testimony, training and
qualifications or the lack thereof. The only place it relates to
evidence is the definition of reasonable doubt.

MR. PHILLIPS: Judge, I think it is also the weight of
the evidence.

MR. RATCHFORD: They may be referring to something I
said in closing. You know, I brought that out.

THE COURT: Those words aren’t used in there but the
almost identical words are in reasonable doubt.

MR. STETZER: Your Honor, the State’s only request is
that we don’t guess, that we either find out what they want or
not instruct them but that we not guess.

THE COURT: I could just read the whole charge to them.
It’s not that long.

MR. RATCHFORD: Your Honor, after reviewing those two
instructions, I believe the Court is right. Those words do come
very close, burden of proof and reasonable doubt, 101.10.

(Whereupon, the jury returned to the courtroom at 2:58

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P.M.)

THE COURT: Members of the jury, I am not exactly sure
which instruction you are wanting. I believe what you are
looking for is what the definition of a reasonable doubt is but I
am not positive and before I give you an instruction on the law I
would prefer to know more specifically what it is you are looking
for or I could read the whole charge to you. It’s really not
that long, ten or fifteen minutes.

JUROR: Please do.

THE COURT: We can do that. That way there is no
question about any of it. Members of the jury, all the evidence
has been presented. Now it is your duty to decide from the
evidence what the facts are and then you must apply the law that
the Court is about to give you to those facts. It is absolutely
necessary that you understand and apply the law as the Court
gives it to you, not as you think it is or you might like for it
to be. Justice requires that everyone being tried for the same
offense be treated in the same way and have the same law applied
to him or her.

The defendant has entered a plea of not guilty. The
fact he has been charged is not any evidence or proof of guilt.
Under our system of justice when a defendant pleads not guilty,
the defendant is not required to prove his innocence. He is
presumed to be innocent. The State must prove to you that the
defendant is guilty beyond a reasonable doubt.

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A reasonable doubt is a doubt based on reason and

common sense that arises out of some or all the evidence that has
been presented or the lack or insufficiency of the evidence as
the case may be. Proof beyond a reasonable doubt is proof that
fully satisfies or entirely convinces you of the defendant’s
guilt. There is not any burden or any duty of any kind on the
defendant.

You alone are the sole judges of the credibility, that
is, the believability of each witness. You must decide for
yourselves whether to believe the testimony of any witness and
you may believe all, any part, or none of what a witness says on
the witness stand.

In determining whether or not to believe a witness, you
simply apply the same tests of truthfulness that you would use in
your own affairs each day or in your own lives. These tests may
include, but are not limited to, the opportunity of the witness
to see, hear, know or remember the facts or occurrences about
which the witness testified, the manner and appearance of the
witness, any interest or bias or prejudice the witness may have,
the apparent understanding and fairness of the witness, whether
the testimony of the witness is reasonable and whether the
testimony of the witness is consistent with the other believable
evidence in the case.

You are also the sole judges of the weight to be given
to any evidence. That means that if you decide that certain

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evidence is believable, you must then determine its importance in
light of all the other believable evidence in the case.

The defendant has elected not to testify in this case
and the law of North Carolina and the United States gives every
person this privilege and right. This same law also assures
every defendant that an election not to testify does not create
any presumption against the defendant. Therefore, his election
is not to influence your decision in any way and, further, you
are not to assess or consider any reasons why the defendant may
have made this decision, for such assessment or consideration
would be based on conjecture or speculation or matters outside of
the record which is a violation of your duty and oath to do so.

There are, however, two types of evidence from which
you may find the truth as to the facts of the case, direct and
circumstantial. Direct evidence is testimony of one who asserts
actual knowledge of a fact such as an eye witness.
Circumstantial evidence is proof of a chain or group of facts
indicating the guilt or innocence of the defendant. The law
doesn’t make any distinction on the weight, that is, the
importance, to be given to either circumstantial evidence or
direct evidence. There is not a greater degree of certainly
required of circumstantial evidence than of direct evidence. You
are to weigh all the evidence in the case. After weighing all
the evidence, if you are not convinced of the guilt of the
defendant beyond a reasonable doubt, it is your duty to return a

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verdict of not guilty.

You may find that a witness has an interest in the
outcome of this trial. In deciding whether or not to believe
such a witness, you may take the interest of the witness into
account. If, after doing so, you believe that testimony in whole
or in part, you should treat what you believe the same as any
other believable evidence in the case.

Also in this case certain photographs and a map has
been introduced for the purpose of illustrating or explaining the
testimony of a witness. These are not substantive or direct
evidence. In other words, they haven’t been admitted to prove
any fact in the case. You may consider this evidence for the
purpose of illustrating or explaining the testimony of the
witness to the extent you find that it does so. These may not be
considered by you for any other purpose in connection with this
trial.

Also in this case certain video tapes and photographs
made from video tapes were offered into evidence. These,
however, may be considered by you as evidence of whatever it
illustrates or shows. Your consideration of the evidence is not
limited to illustration or explaining the testimony of a witness.

Proof of motive for a crime is permissible and often
valuable but is never essential for conviction. If you are
convinced beyond a reasonable doubt that the defendant committed
the crime, presence or absence of motive is immaterial. Motive

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may be shown by facts surrounding the act if they support a
reasonable inference of motive. When thus proved, motive becomes
a circumstance to be considered by you. The absence of motive is
equally a circumstance to be considered on the side of innocence.

Now the Court instructs you that the State has the
burden of proof of the identity of the defendant as the
perpetrator of the crime charged beyond a reasonable doubt. This
means you, the jury, must be satisfied beyond a reasonable doubt
that the defendant was the perpetrator of the crime charged
before you may return any verdict of guilty.

You have also heard evidence from witnesses who have
testified as expert witnesses. An expert witness is permitted to
testify in the form of an opinion in a field where the witness
purports to have specialized skill or knowledge. As the Court
has instructed you, you are the sole judges of the credibility,
that is, the believability of each witness, and the weight or the
importance to be given to the testimony of each witness and make
a determination as to credibility and weight in addition to the
other tests of credibility and weight about which you have been
instructed. You may consider the witness’ training,
qualifications and skills, experience or the lack thereof, the
reasons, if any, given for an opinion, whether the opinion is
supported by facts that you find from the evidence, whether the
opinion is reasonable, and whether the opinion is consistent with
the other believable evidence in the case. You should consider

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opinion of an expert witness but you are not bound by it. In
other words, you are not required or compelled to accept an
expert witness’ opinion to the exclusion of the facts and

circumstances that is disclosed by other testimony or evidence.

Again the defendant has been charged with first degree
murder and under the law and evidence in this case it is your
duty to return one of the following verdicts: Guilty of first
degree murder or guilty of second degree murder or not guilty.

First, the defendant intentionally and with malice
killed Ms. Yarmolenko. Malice means hatred, ill will or spite as
it is ordinarily understood. To be sure, that is malice, but it
also means the condition of the mind which prompts a person to
take the life of another intentionally or to intentionally
inflict serious injury upon another which proximately results in
death without just cause, excuse or justification.

Second, the State must prove beyond a reasonable doubt
that the defendant’s acts were a proximate cause of the death. A
proximate cause is a real cause, a cause without which the death
would not have occurred.

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Third, the State must prove beyond a reasonable doubt
that the defendant intended to kill Ms. Yarmolenko. Intent is a
mental attitude seldom provable by direct evidence and must
ordinarily be proved by circumstances from which it may be
inferred. An intent to kill may be inferred from the nature of
the defendant’s act, the manner in which it was made and other
relevant circumstances.

Fourth, the State must prove beyond a reasonable doubt
that the defendant acted with premeditation, that is, he formed
the intent to kill over some period of time, however short,
before he acted.

Fifth, the State must prove beyond a reasonable doubt
that the defendant acted with deliberation, which means he acted
while he was in a cool state of mind. This does not mean that
there had to be a total absence of passion or emotion if intent
to kill was formed with a fixed purpose not under the influence
of some suddenly aroused violent passion. It is immaterial that
the defendant was in a state of passion or excited when the
intent to kill was carried into effect. Neither premeditation
nor deliberation is usually susceptible of direct proof. It may
be proven by circumstances from which it may be inferred such as
the brutal or vicious circumstances of the killing or the manner
in which or the means by which the killing was done.

Second degree murder differs from first degree murder
in that neither specific intent to kill, premeditation nor

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deliberation is a necessary element. For you to find the
defendant guilty of second degree murder, the State must prove
beyond a reasonable doubt that the defendant unlawfully,
intentionally and with malice wounded Ms. Yarmolenko, thereby
proximately causing her death.

So, members of the jury, if you find from the evidence
beyond a reasonable doubt that on or about the alleged date the
defendant acting with malice killed Irina Yarmolenko, thereby
proximately causing her death, and that the defendant intended to
kill her and that the defendant acted after premeditation and
with deliberation, it would be your duty to return a verdict of
guilty of first degree murder.

If you do not so find or if you have a reasonable doubt
as to any one or more of these things, you would not return a
verdict of first degree murder but you must consider whether or
not the defendant is guilty of second degree murder.

If you find from the evidence beyond a reasonable doubt
that on or about the alleged date the defendant intentionally and
with malice wounded Ms. Yarmolenko, thereby proximately causing
her death, it would be your duty to return a verdict of guilty of
second degree murder.

If you do not so find or if you have a reasonable doubt
as to any one or more of those things, then it would be your duty
to return a verdict of not guilty.

Members of the jury, you have heard the evidence and

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arguments of counsel. The Court has not summarized the evidence
in this case and it is your duty to remember the evidence,
whether it has been called to your attention or not, and if your
recollection of the evidence is different from that of the
attorneys, you are to be guided exclusively by your recollection
in recalling and remembering the evidence during the course of
your deliberations.

The Court has not reviewed the contentions of the State
or the defendant but it is your duty not only to consider the
evidence, the positions and contentions urged by the attorneys in
their speeches to you, but any other inference that you find
arises from the evidence, to weigh all this in light of your
common sense as best you can to determine the truth of this
matter.

Each of you was selected and sworn to serve as a juror
to find the truth in this case from the evidence presented and to
render a verdict reflecting the truth as you find it. You are to
perform this duty fairly and objectively without any bias or
prejudice. You are not to be swayed by pity or sympathy or
partiality or public opinion. You are not to concern yourself as
to whether or not your verdict pleases the Court. You are
expected to carefully and fairly consider the evidence, follow
the law as given to you by the Court and reach a just verdict.

It is the Court’s duty to preside over the trial and
ensure it is conducted according to established rules of law,

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evidence and procedure. The law, as indeed it should, requires
the presiding judge to be impartial and express no opinion as to
the facts. Therefore, you are not to draw any inference from any
ruling that the Court has made that the Court has an opinion or
has intimated an opinion. You are not to let any inflection in
my voice or expression on my face or anything else I might have
said or done during this trial influence you as to whether or not
any fact has or has not been proven, whether any witness should
be believed or disbelieved, or as to what your findings ought to
be. That is exclusively your province and your duty.

Again a verdict is not a verdict until all twelve of
you agree unanimously as to what your decision shall be. You may
not return a verdict by taking a majority vote. All right. With
our thanks you may retire to the jury room and resume your
deliberations.

(Whereupon, the jury returned to the jury room at 3:12
P.M.)

THE COURT: Let the record show the jury has left the
courtroom. Are there any requests for additions or corrections
to the charge?

MR. STETZER: There is no such request from the State.

MR. RATCHFORD: No, sir.

(Whereupon, the jury was returned to the courtroom at

4:50 P.M.)
THE COURT: Members of the jury, we are going to go
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ahead and take our evening recess. We will resume Monday morning
at 9:30, same time. The sheriff will tell you where you need to
report back to, what time he needs you, probably the same time.
What we want to do is, first of all - I see the sheriff has got
the exhibits. As far as the verdict sheet is concerned, we will
take it and secure it. Mr. Foreperson, if you will - I am
assuming you are the foreperson since you have the verdict sheet.
That is an assumption only. If when you return on Monday and you
check the verdict sheet, if there is anything on it or anything
out of the ordinary on it, let us know by way of note
immediately. I don’t think that’s going to happen because the
clerk will secure it, but just as a preliminary instruction with
regard to that.

Remember you are not to talk about the case with
anyone. You are not to have any communication of any kind with
any party, witness or attorney. You are not to read or watch or
listen to any media accounts of the trial. You are not to visit
the scene or make any type of independent investigation. Again
if anyone does attempt to contact you, let your courtroom sheriff
know immediately and make sure you make those around you aware
that you are not permitted to talk about the case. We do
appreciate the time and the attention you have given this matter.
Enjoy your weekend. Sheriff, you may escort the jury from the
courtroom.

(Whereupon, the jury left the courtroom and the Court

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took a weekend recess at 4:55 P.M.)

(Reporter’s note: The verdict in this case was reported on
March 21, 2011 by B.J. Ward.)

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STATE OF NORTH CAROLINA
COUNTY OF GASTON
C E R T I F I C A T E

I, Mitzy Bondurant, Court Reporter and Notary Public,
do hereby certify that I reported the trial on March 14-18, 2011,
in the matter of the State of North Carolina versus Mark Carver,
08 CRS 68290.

I do further certify that the foregoing 395 pages
constitute a true and accurate transcript of those days of said
trial.

I further certify that I am not of counsel for either
party to this action nor am I interested in the results of said
action.

IN WITNESS WHEREOF, I HAVE HEREUNTO SUBSCRIBED MY NAME
THIS 28th day of April, 2011.

Mitzy Bondurant
Official Court Reporter

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STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF GASTON 08 CRS 68290

STATE OF NORTH CAROLINA, )
)
VS. )
)
MARK CARVER, )
)
Defendant )

This is to certify that the transcript of the trial in

the above-captioned case was requested of Mitzy Bondurant on the

23rd day of March, 2011 and was e-mailed to the attorneys of

record as indicated below on the 28th day of April, 2011.

Stephanie Hamlin
Assistant District Attorney
325 N. Marietta
Gastonia, NC
stephanieannehamlin@yahoo.com

Appointed Appellate Counsel

M. Gordon Widenhouse, Jr.
312 W. Franklin Street
Chapel Hill, NC 27516
mgwidenhouse@rwf-law.com
North Carolina Department of Justice
Appellate Section

P. O. Box 629
Raleigh, NC 27602
crimtranscripts@ncdoj.gov
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Mitzy Bondurant
Official Court Reporter

398