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 


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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.) 


24 

 

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25 

 

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26 

 

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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 


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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. 


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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 


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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 
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-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 


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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 


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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. 


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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 

 

-61


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 

 

-62


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 

 

-63


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 

 

-66


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 

 

-67


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. 
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-70


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. 
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-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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-73


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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-80


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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-82


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 

 

-83


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? 
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-84


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 

 

-85


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 

 

-86


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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-87


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 

 

-88


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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-90


(Whereupon, the Court took an overnight recess at 12:45 


P.M.) 


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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 
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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. 
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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
Terry - Direct/Hamlin - 114 

 

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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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th


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. 


th


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 
Terry - Direct/Hamlin - 181 

 

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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 


th


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 


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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 


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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? 
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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? 
Terry - Direct/Hamlin - 191 

 

-192


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. 
Terry - Direct/Hamlin - 192 

 

-193


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. 
Terry - Direct/Hamlin - 193 

 

-194


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 

 

-200


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 

 

-203


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 

 

-212


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 

 

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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. 
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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. 
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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 


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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? 
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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 
Workman - Cross/Phillips - 239 

 

-240


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? 
Workman - Cross/Phillips - 240 

 

-241


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 
Workman - Cross/Phillips - 241 

 

-242


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 

 

-243


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 

 

-244


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 

 

-246


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 

 

-248


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 

 

-249


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 
Souther - Direct/Hamlin - 249 

 

-250


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 

 

-251


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 

 

-252


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 

 

-254


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 

 

-259


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 
Souther - Cross/Phillips - 259 

 

-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 
Souther - Cross/Phillips - 260 

 

-261


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 

 

-262


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 

 

-263


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 

 

-264


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 

 

-265


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? 
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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. 
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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 
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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 


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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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-316


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? 
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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. 
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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? 
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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? 
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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. 


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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. 
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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? 
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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. 


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-327


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.) 


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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 


332 

 

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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, 


th


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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-344


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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-345


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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-346


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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-347


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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-348


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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-349


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. 


350 

 

-351


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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-353


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 

 

-355


I N D E X 


Jury Charge Page 360 


355 

 

-356


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? 


356 

 

-357


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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-358


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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-359


(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) 


359 

 

-360


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 


Charge - 360

 

-361


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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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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-376


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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-378


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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-380


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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-381


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. 


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


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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-387


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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-388


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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-389the 
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 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, 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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-390


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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-391


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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-392


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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-393


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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-394


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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-395


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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-396


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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-397


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