STATE OF NORTH CAROLINA

COUNTY OF BUNCOMBE

IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION

FILE NO. 00-CRS-65085

STATE OF NORTH CAROLINA,

Plaintiff,

v.

LARRY JEROME WILLIAMS, JR.,

Defendant

))))))))))

MOTION FOR APPROPRIATE RELIEFDEFENDANT LARRY JEROME WILLIAMS, JR.

TO: The Honorable Alan Z. ThornburgSenior Resident Superior Court Judge28th Judicial District Buncombe County Judicial ComplexAsheville, NC 28801

TABLE OF CONTENTS

MOTION FOR APPROPRIATE RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

PROCEDURAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

INTRODUCTORY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

FACTUAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

The Death of Walter Bowman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

The Initial Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Crime Stoppers Tips . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Initial Media Coverage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Statements by the “Group B” Suspects . . . . . . . . . . . . . . . . . . . . . . . 20

Larry Williams . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Teddy Isbell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Damian Mills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Kenneth Kagonyera . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Robert Wilcoxson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Aaron Brewton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

The District Attorney’s Opinion of the Interview Evidence . . . . . . . . 32

Exculpatory Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

2001 Exculpatory DNA Evidence . . . . . . . . . . . . . . . . . . . . . . . . 33

The 2003 Confession of Robert Rutherford . . . . . . . . . . . . . . . 33

Efforts of Kenneth Kagonyera to Obtain DNA Evidence . . . . . 36

The 2007 CODIS Linkage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Kagonyera’s Motion for Appropriate Relief . . . . . . . . . . . . . . . . . . . . 41

The Fresh Significance of the Kounty Line Amoco Security Video . . 46

The Pervasive Involvement of Matthew Bacoate III . . . . . . . . . . . . . 48

GROUNDS FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

FIRST GROUND FOR RELIEF - FACTUAL INNOCENCE . . . . . . . . . . . . . . . . . . 52

SECOND GROUND FOR RELIEF - IMPROPERLY WITHHELD EXCULPATORY EVIDENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

The DNA Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 The Rutherford Confession and the CODIS Hit . . . . . . . . . . . . . . . . . . 63

THIRD GROUND FOR RELIEF - NEWLY DISCOVERED EXCULPATORY EVIDENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

The 2001 SBI Laboratory DNA Results . . . . . . . . . . . . . . . . . . . . . . . . . . 65

The 2003 Robert Rutherford Confession . . . . . . . . . . . . . . . . . . . . . . . . 67

The 2007 CODIS DNA Match . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

The 2010 and 2013 LabCorp DNA Results . . . . . . . . . . . . . . . . . . . . . . . 69

The Enhanced Footage from the Kounty Line Amoco Security Camera . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

NOTICE TO THE COURT OF INTENT TO AMEND . . . . . . . . . . . . . . . . . . . . . . . . 71

PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

CERTIFICATE OF SERVICE AND COMPLIANCE WITHN.C.Gen. Stat. § 15A-1420(a)(1)(c1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

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MOTION FOR APPROPRIATE RELIEF

NOW COMES Defendant, Larry Jerome Williams, Jr., pursuant to N.C. Gen. Stat. § 15A-

1411 et seq., to move this Court to grant appropriate relief in this case. As grounds for this

motion, the defendant shows unto the Court that his convictions were obtained in violation of

the United States Constitution and the constitution and laws of North Carolina, and that

evidence is now available that was unknown or unavailable at the time of trial, which could not

have been discovered with due diligence, and which has a direct and material bearing on

defendant’s guilt.

In this motion, Mr. Williams requests that this Court vacate his conviction on a finding of

innocence and take other actions consistent with his demonstrated claim of innocence.

Denying him such relief will result in a fundamental miscarriage of justice within the meaning of

N.C. Gen. Stat. § 15A-1419(b)(2) and under House v. Bell, 547 U.S. 518 (2006).

In support of this motion, Mr. Williams shows the Court that:

PROCEDURAL BACKGROUND

1. On October 24, 2000, Larry Jerome Williams, Jr. was charged with first degree

murder, file number 00 CRS 65085. The charge arose out of the homicide of Walter Rodney

Bowman on September 18, 2000. Because Williams faced the possibility of capital punishment,

two attorneys - Howard McGlohon and Leah Broker, both of the Asheville, North Carolina bar -

were appointed to represent him.

2. Five other individuals were also charged with the first degree murder in the

Bowman matter: Kenneth Kagonyera, Robert Wilcoxson, Damian Mills. Teddy Isbell and Aaron

Brewton.

3. On February 25, 2002, Williams entered a plea of guilty to second degree

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murder. Four of the defendants - Williams; Kagonyera; Wilcoxson; and Mills - pled guilty to

second degree murder and related offenses. Isbell pled guilty to accessory after the fact of

second degree murder. All charges against Brewton were dismissed.

4. Larry Williams was released from prison on September 9, 2009.

5. On August 26th and November 22nd, 2008, Kenny Kagonyera and Robert

Wilcoxson filed petitions with the North Carolina Innocence Inquiry Commission (“NCIIC”

herein), respectively, each claiming factual innocence of the murder of Walter Bowman

pursuant to N.C. General Statute § 15A-1460 et seq.

6. On September 12-22, 2011, Kagonyera's and Wilcoxson's NCIIC claims were

heard before a three judge panel consisting of the Honorable Bradley Letts of Jackson County,

the Honorable Patrice Hinnant of Forsyth County, and the Honorable Erwin Spainhour of

Cabarrus County. After a full, adversarial evidentiary hearing, the panel unanimously found by

clear and convincing evidence that the petitioners had proved their innocence of the murder of

Walter Bowman. Kagonyera and Wilcoxson's convictions were vacated and their charges of

murder were dismissed.

7. Larry Williams initiated a claim with the NCIIC on April 26, 2012.

8. The undersigned, W. Bradford Searson, was appointed to represent Williams

before the NCIIC.

9. On December 16, 17 and 18, the NCIIC claim of Larry Williams, along with the

claims of co-defendants Damian Mills and Teddy Isbell, was heard by the eight-member NCIIC

panel. After all evidence was presented and the IIC failed to reach a unanimous decision, the

Honorable Quentin T. Sumner, sitting as chair, entered orders denying the claims of Williams,

Mills and Isbell.

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INTRODUCTORY STATEMENT

Larry Williams spent nearly nine years of his life - from age 16 to age 25 - imprisoned for

a crime he did not commit. He was wrongfully convicted of the murder of Walter Bowman

because the District Attorney and the Buncombe County Sheriff’s Office withheld evidence

which would have enabled him to establish his innocence, and because additional exculpatory

evidence was unavailable to him prior to his trial.

In September, 2000, Larry Jerome Williams, Jr., was 16 years old. He had two older

sisters. Larry’s mother had an intermittent work history. Larry does not recall his father

working. Both parents drank - his father excessively. Larry was raised by his grandmother until

she was no longer able to care for him and the Department of Social Services intervened to

obtain custody. In the years prior to his 16th birthday, he lived with a series of foster parents

and in group homes, several as far away as Greensboro. Larry obtained a “home pass” from the

Greensboro facility in late 1999, traveled back to Asheville and never returned to the group

home. By the summer of 2000, he was living on the streets. He was 5' 6" tall and weighed

approximately 115 pounds. To his friends and acquaintances, he was “Little Larry”.1 Five and a

half months earlier, he would have been eligible for prosecution as a juvenile delinquent.

Among his friends was Robert Wilcoxson.2 Wilcoxson spent the night of September 18-

19 with his girlfriend Dea Johnson at her grandmother’s home. Larry Williams fell asleep

watching a movie in Wilcoxson’s van parked in the grandmother’s driveway.

Meanwhile, halfway across Buncombe County, in the rural community of Fairview, just

before midnight, three intruders burst into a weather-beaten modular home rented by Alma

Bowman. Mrs. Bowman had left earlier but other family members and friends were present.

1In an October 26, 2000 interview with detectives, Co-defendant Damian Mills would described Williams as “a little puppy” who did not say much around his older acquaintances. In another interview, Mills - himself 20 at the time - said that Williams was too young for Mills to associate with.

2Wilcoxson would become a co-defendant of Larry Williams in this matter. Wilcoxson never gave a statement admitting involvement in the homicide but, on August 15, 2002, he pled guilty. Ultimately, a three-judge panel found, by clear and convincing evidence, that Wilcoxson was innocent of the murder of Walter Bowman.

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Shaun Bowman; his girlfriend, Wanda Renita Holloway; and a colleague of Bowman’s were

watching television in the living room when the masked men entered. Walter Rodney Bowman

– Alma’s sometimes estranged husband and Shaun’s father - was lying down in a back

bedroom.

Shaun Lee “Dirty” Bowman had a history of drug dealing. He was also widely suspected

of being an informant for District Attorney Ron Moore. Bowman and Ms. Holloway periodically

stayed at Alma Bowman’s residence. Neighbors were disturbed by what they believed was

regular drug activity at 74 Church Road and by Shaun Bowman’s neglect of several pit bulls

which he kept at the residence. The Bowmans were the only black family living along that

stretch of Church Road.3

The intruders - Bradford Summey, Lacy “J.J.” Pickens and Robert Rutherford - each wore

a bandana tied across his face. Pickens and Summey wore gloves and were armed, one with a

semi-automatic pistol, the other with a shotgun. Rutherford would later claim to have been

unarmed - although occupants of the house remembered each man brandishing a gun. The

intruders had been informed that they would find a large quantify of cash, marijuana and

cocaine in the house.

Awakened by the shouting and barking of the dogs, Walter Bowman arose and tried to

lock the bedroom door. Summey fired the shotgun through that door, fatally wounding Walter

Bowman. Summey, Pickens and Rutherford ran from the house. With his father dying on the

bedroom floor, Shaun Bowman also fled the scene. For weeks, thereafter, the younger

Bowman - inexplicably - evaded detectives while Ms. Holloway continued to deny that Shaun

Bowman had been present at the time of the shooting.

Two days later, at 7:10 a.m. on Wednesday, September 20, the BCSO received a Crime

Stoppers tip that correctly identified Lacy “J.J.” Pickens, Bradford Summey and Robert

3The community is largely rural with clusters of mobile and modular homes on side roads closer to Highway 74A, the main artery into Asheville. Fairview Elementary School is less than two miles from the Bowman residence. A neighbor, who attended Fairview Elementary in 2001, recalls that the only black children enrolled were all members of one family.

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Rutherford4 as the individuals who had attempted the armed robbery which left Walter

Bowman dead. All three had histories of involvement in the drug trade in Buncombe County.

Thus began an investigation that produced results which alternated between comically

slapdash and carefully contrived. From the outset, Buncombe County authorities seemed

resistant to the idea that Summey, Pickens and Rutherford had broken into Shaun Bowman’s

house and killed his father. BCSO Det. George Sprinkle concluded, incorrectly, that Pickens had

been in jail on the night of September 18. Eyewitnesses were never shown photographs of

Summey, Pickens or Rutherford. No one attempted to compare Pickens’s car - a blue

Oldsmobile Cutlass with a vinyl top - to a car identified at a gas station/convenience store near

the Bowman home minutes before the home invasion. The three young, black male occupants

were “acting strangely” just minutes before the home invasion. A security camera at the

convenience store on Highway 74A, the main road into Asheville, captured footage of the three

black males arriving and departing in a 1970 or 1971 vinyl-top Oldsmobile Cutlass. Despite

those tantalizing connections, no one ever questioned Summey, Pickens or Rutherford.

Three days later, on September 23, a second Crime Stoppers tip was received by BCSO.

This caller reported that Kenneth Kagonyera, Aaron Brewton and Larry Williams5 were involved

in the murder of Walter Bowman.

Kagonyera was the first of the subjects to be interviewed. Detective Lt. Sam Constance

questioned Kagonyera on the day that he was first named in the Crime Stoppers tip. Kagonyera

denied any involvement in or knowledge of the Bowman homicide. For over a year, Kagonyera

would insist to the police and to his attorneys that he had had nothing to do with the robbery

attempt and killing of Walter Bowman.

4Hereinafter, Pickens, Summey and Rutherford will sometimes be referred to as “the Group A Defendants”.

5Kagonyera, Brewton and Williams - along with Robert Wilcoxson and Damian Mills – will at times be referred to herein as “Group B”.

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Also on September 23, the detectives interviewed Aaron Brewton. He too disclaimed

any knowledge. Despite being named as a participant by his eventual co-defendants and being

indicted for the murder, Brewton never stopped insisting upon his innocence. Eventually, the

charge against him would be dismissed outright.

The first interview of the 16-year-old Larry Williams took place on September 24. The

interview lasted more than an hour. No notes were taken or, if notes were taken, they have

never been disclosed to defense counsel. In a second interview the next day, September 25,

Williams told Detectives George Sprinkle and Michael Murphy that he knew nothing about the

Bowman matter.

On September 25, Matthew “Matt” Bacoate III interjected himself for the first time into

the investigation. Bacoate was the director of “Life On Life=s Terms,” an organization

ostensibly dedicated to assisting individuals addicted to drugs. Many of those enrolled in Life

On Life’s Terms were simultaneously facing criminal charges related to their drug use. Bacoate

had a close relationship with Buncombe County District Attorney Ron Moore. Bacoate strongly

encouraged program participants to “cooperate” in pending criminal investigations. Moore

made a practice of reducing charges against defendants who signed up for Life on Life’s Terms.

Individuals paid to participate in the program.

On September 25, 2000, Bacoate contacted Detective Lieutenant Sam Constance of the

Buncombe County Sheriff’s Office (BCSO) to report that Teddy Isbell, a resident at the Life on

Life’s Terms facility, had information about the Bowman homicide. At the request of Isbell, DA

Moore and Bacoate participated in an interview of Isbell. All told, between September 25 and

October 10, Isbell would be interviewed at least four times. Several of the interviews were

broken up into lengthy segments. Notes were taken of some, but not all, of the interviews.

According to Bacoate, Isbell was high on drugs at the time of the second, and most extensive,

interview. Isbell’s tale on that occasion - the second interview on October 25 - was a

phantasmagoria of avoidance, admission and finger pointing. Ultimately, detectives were able

to extract the names of Kenneth Kagonyera, Robert Wilcoxson, Larry Williams and Isbell himself

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from the tangle presented them by Isbell. Brewton and Mills were not mentioned by Isbell in

this second iteration of his story.

By September 26, Williams had been arrested and taken to the Buncombe

County Jail on unrelated charges. Williams was brought into a jail interrogation room to face

DA Ron Moore, Sheriff Bobby Medford, Detective Lt. Constance and Asheville Police

Department (APD) Detective Forrest Weaver. From Lt. Constance’s memorandum, it appears

that Sheriff Medford asked to be alone with the diminutive teenager. Medford emerged from

the interview room to announce that Williams had “confessed” to being involved in the

Bowman homicide and had implicated Kagonyera, Wilcoxson, and Brewton - but not Isbell or

Mills. Within minutes of “confessing,” Williams asked to speak with Det. Weaver alone.

Williams, then, recanted his confession.

On September 28, Williams insisted again to Lt. Constance and to Sheriff Medford

himself that his “confession” two days earlier had been untrue. He said that he had made the

inculpatory statements out of fear and that he had never been to the Bowman residence.

On October 11, Williams was interviewed for a fifth time, this time by Detective Murphy.

Murphy recorded Williams as admitting involvement and saying that details of the homicide

were “just as Sheriff Medford” had told Williams.

On October 24, Detectives Constance and Murphy again interviewed Larry Williams,

who reiterated his innocence of the Bowman home invasion. Constance and Murphy then

served him with a warrant charging first degree murder and told him “this is it” and “the time

to talk is now”. An hour later, Williams implicated himself and all of the Group B individuals,

including Damian Mills. Three days later, on October 27, Williams reversed himself again,

denying that he had been present.

The version of events which included Kagonyera, Wilcoxson, Brewton, Isbell, Williams

and Mills was a construct, repeatedly cobbled together only to fall apart again. The Buncombe

County Sheriff himself and the District Attorney conducted the questioning of several

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defendants. None of the six ever had an attorney present during the defendant=s

interrogation. The State’s theory of the case held together just long enough for the pleas to be

entered. The house of cards may well have collapsed earlier if the defendants and their lawyers

had been made aware of a fact made known to District Attorney Ron Moore in early March,

2001, months before the first guilty plea: relevant DNA evidence excluded all six of the Group

B individuals.

During the investigation of the homicide, the Buncombe County Sheriff's Office located

and seized several pieces of physical evidence - three bandanas and two pairs of gloves - from a

roadside ditch just over a mile away from the Bowman home along a road leading back toward

Asheville. In late 2000, the BCSO detectives sent these items of physical evidence to the North

Carolina State Bureau of Investigation to be analyzed for the presence of genetic material, and

to have any recovered material compared to genetic samples taken from each member of

Group B. An identifiable DNA profile was obtained from one bandana and a mixture of profiles

from another; neither the individual profile nor the profiles contributing to the mixture

matched DNA profiles of any of the six Group B individuals. Someone had left saliva on the two

bandanas worn by the intruders but whoever did so was not Larry Williams, Robert Wilcoxson,

Kenneth Kagonyera, Teddy Isbell, Damian Mills nor Aaron Brewton.

While these samples were submitted a few months after the Bowman homicide, neither

Mr. Williams nor his attorneys were ever provided a report of the testing outcomes. Only a

decade later would Larry Williams learn that the DNA comparison results were reported by the

SBI lab to the BCSO and Buncombe County District Attorney's Office in March of 2001 and that

the DNA comparison not only excluded his DNA from each piece of physical evidence, it

excluded - with statistical certainty - every other member of Group B as well.

Ultimately, Larry Williams was persuaded by his appointed attorneys and his family that

the risk of a capital murder trial was too great. On February 25, 2002, Larry Williams plead

guilty to second degree murder. At a hearing on September 10, 2002, he was sentenced to

100-129 months imprisonment. Kagonyera, Wilcoxson and Mills were sentenced in the same

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proceeding. District Attorney Ron Moore himself appeared for the State. As he stood in the

courtroom watching Williams, Kagonyera, Wilcoxson and Mills being led away to serve,

between them, over sixty years in prison, Moore had in his possession DNA evidence which

demonstrated that none of the four were guilty. It would be six years before that evidence

would see the light of day.

In the meantime, Summey, Pickens and Rutherford re-surfaced as suspects. In

January-February, 2003, Dennis Braswell, Amos Scott and others were standing trial in a drug

conspiracy prosecution in United States District Court in Asheville. Robert Rutherford was a

co-defendant who had agreed to cooperate by testifying as a government witness. During trial

preparations, Rutherford disclosed to United States Drug Enforcement Agency (DEA) Special

Agent Barney Whiteis that Rutherford, Summey and Pickens - and not Larry Williams or the

other Group B defendants - had invaded Shaun Bowman’s home on September 18, 2000. In a

detailed statement recorded in the agent=s memorandum of interview, Rutherford identified

Summey as the man who had fired the shotgun blast which killed Walter Bowman.

In June, 2003, the DEA transmitted Rutherford’s statement to District Attorney Ron

Moore. Moore did not disclose Rutherford’s admission to Williams, Kagonyera, Wilcoxson,

Mills or their lawyers, all of whom had plead guilty and were in prison by that time.

Whiteis, who was based in Charlotte and had no prior knowledge of the murder, created

a memorandum of the interview. Whiteis documented that Rutherford had confessed to being

involved in a home invasion in Fairview, North Carolina in 2000 of a man named "Bowman."

Rutherford told him that the purpose of the home invasion was to rob Bowman; that he

committed the invasion with Lacy Pickens and Bradford Summey; that they drove to the

Bowman residence in Pickens 1970's model blue Oldsmobile; that they'd stopped at a store

near Reynolds High School prior to the shooting; that they were wearing bandanas and gloves

during the commission of the invasion; and that during the invasion Bowman was shot, leading

the men to flee the scene.

Rutherford's unsolicited, detailed and straight-forward confession to Whiteis stands in

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stark contrast to the roundelay of vague, contradictory and internally-inconsistent confessions

and recantations extracted from the Group B defendants. Rutherford's confession is

corroborated by early tips, DNA evidence, surveillance video, and eyewitness testimony. On

the other hand, Group B's various confessions, which were made while under threat of the

death penalty during interrogations conducted directly by the elected district attorney, Ron

Moore, and sitting sheriff, Bobby Medford, were not only contradictory in-and-of themselves,

but were also inconsistent with the known facts of the home invasion and homicide. For

example, the Group B defendants were continuously inconsistent about how many people were

involved, who was involved, what vehicle was driven, how many vehicles were driven, what

people were wearing, who was armed, who went inside the Bowman residence. Moreover, the

Group B defendants' confessions are contradicted by all the "hard" evidence. DNA evidence, by

virtue of excluding all of Group B and implicating other persons, contradicts Group B's

statements. The videotape of the Kounty Line Amoco contradicts statements made by Group B

defendants that they drove to the scene in Kenny Kagonyera's Chevy Impala and/or Robert

Rutherford's Ford Econoline van. Eyewitnesses to the invasion have testified they saw three or

four participants (cf. Rutherford, Pickens, Summey), not six (cf. Isbell, Kagonyera, Wilcoxson,

Williams, Mills, Brewton).

Simultaneously, other strands of the truth began to emerge. On March 28, 2007, the

SBI was notified that the national CODIS DNA database had matched DNA extracted from one

of the bandanas recovered near the Bowman home and the DNA profile of Brad Summey. That

result was mailed, in June, 2007, to the SBI headquarters in Raleigh. An SBI DNA analyst has

testified that he contacted BCSO detectives by telephone and discussed the CODIS hit in detail

with them and requested that a DNA profile be obtained from Summey for verification. When

he received no further response from the BCSO, the analyst sent a report of the CODIS hit to

the BCSO. He testified further that the SBI protocols in place in 2007 required that a copy of

the CODIS comparison information be mailed to the District Attorney. SBI records note that the

report was sent to DA Moore. Neither the BCSO nor DA Moore made any apparent effort to

inform the Group B defendants or their lawyers of this evidence which strongly supported the

position that none of them had been involved in the death of Walter Bowman.

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The likelihood that this match was erroneous is one in one trillion (1 in

1,000,000,000,000). Subsequent DNA testing conducted by the NCIIC in 2010 and 2013

revealed additional significant evidence of innocence. Two of the gloves revealed a partial DNA

profile that excluded all member of Group B, and every member of Group A except for Lacy

Pickens. In addition, the recovered partial profile included a rare allele, or DNA marker. This

allele is not present in Caucasian or Hispanic populations, and is only present in .03% of the

African American population. Lacy Pickens' DNA also contained this rare allele. Another

recovered bandana contained a mixture of DNA that excluded everyone from Group B, and

every member of Group A except Robert Rutherford. Forensic experts testified that the odds of

someone unrelated to Rutherford having a DNA profile included in that mixture was

approximately 1 in 21,030.

In the light of Rutherford’s statement to the DEA, evidence obtained early in the

investigation assumed fresh significance. The day after the shooting, the Buncombe County

Sheriff's Office had obtained a video surveillance tape from the Kounty Line Amoco station

located on Highway 74, which is the main thoroughfare into Asheville. An episode of a daytime

soap opera was recorded over the video while the video was in custody of the BCSO.

Nevertheless, on what remains of that tape, at approximately 11:19 p.m., three black males are

seen standing at a gas pump and entering the store. The individuals are difficult to identify on

the video but the vehicle can be seen distinctly. An expert in American automobiles identified

the vehicle as a 1971 or 1972 Oldsmobile Cutlass Supreme. Records recovered from the North

Carolina DMV establish that Lacy Pickens owned a 1971 Oldsmobile Cutlass Supreme in

September of 2000. According to those records, Pickens was driving the Cutlass Supreme when

he was stopped for several traffic offenses in the months just before September, 2000. No

member of Group B owned a 1971 or 1972 Oldsmobile, and the vehicle law enforcement seized

at the time of the crime - Kenneth Kagonyera's Chevrolet Impala - was definitively excluded as

being the vehicle seen in the Amoco tape by a qualified expert and by eyewitnesses from the

gas station.

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Larry Williams entered his plea knowing he was innocent and had nothing to do with the

murder of Walter Bowman. However, he did not know that the SBI's DNA test had excluded

himself and all of his co-defendants. He would have known had the District Attorney honored

his legal obligation to provide that report in discovery.

Nor was Larry Williams informed - as his years in prisons passed - that evidence of his

innocence was mounting. Williams could not have known that, in 2003, Robert Rutherford

would implicate himself, Summey and Pickens in the killing of Walter Bowman; or that, seven

years into his sentence, CODIS and the SBI would link Bradford Summey to the crime; or that

advanced DNA extraction techniques would lead, in 2013, to a statistical likelihood that Robert

Rutherford's DNA was on one of the bandanas found near the Bowman residence the day after

the murder.

FACTUAL BACKGROUND

The Death of Walter Bowman

1. September 18, 2000 was a Monday. On that evening Shaun Bowman was at his

home located at 74 Church St. in Fairview, North Carolina, watching the Washington Redskins

play the Dallas Cowboys on NBC's Monday Night Football. With Bowman were his girlfriend,

Wanda Holloway; his father, Walter Rodney Bowman; and a friend, Tony Gibson, were also

watching the game.

2. Late that evening, near the end of the second half of the game, three black men

burst into the home. Each of the intruders wore a bandana tied over his face, and two of the

men wore gloves. At least one of the men carried a handgun, and one carried a shotgun.

Brandishing their weapons, the men yelled for everyone to "get down".

3. The intruder with the shotgun fired it through a bedroom door, striking Walter

Bowman. The three men then left quickly without taking anything.

4. At 11:55 p.m., Wanda Holloway called 911 and reported that “3 guys came to

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the residence” and shot the victim. Buncombe County officers and homicide detectives were

dispatched to the scene, as were emergency medical responders.

5. Shaun Bowman and Tony Gibson left sometime after the murder but before first

responders arrived. Bowman later claimed that he left because there were outstanding

warrants for his arrest. Gibson drove Bowman into Asheville and dropped him off on Merrimon

Avenue.

6. Wanda Holloway told the officers and detectives that she was watching the

football game, then took a break to let her dogs out into the yard. She stated that the dogs

behaved unusually, barking at a line of bushes near the front door. It was after she put the

dogs back in a rear bedroom that the three had come yelling through the front door. Holloway

had run into the kitchen, and one of the men had dragged her back into the living room by her

hair, when she heard a single gunshot. She “then looked up and there were three guys running

out of the house.” She could not identify any of the three black males, who she said were

wearing bandanas over the lower parts of their faces. She did not initially tell the police officers

that Shaun Bowman and Tony Gibson had been present.

7. James "Tony" Gibson, whom law enforcement eventually determined was

present at the Bowman residence at the time of the murder, was interviewed by Detective

George Sprinkle and Detective Mike Murphy on September 20 and 21, 2000. During his first

interview, Gibson stated he had left the house before the shooting. When interviewed again,

he stated that he was at the Bowman home at the time of the murder, and that he had been

watching Monday Night Football when a man opened the door pointing a gun, and told

everyone to "get down." Two more men then entered the Bowman house, one carrying a

semi-automatic pistol and the other carrying a pistol grip shotgun. Gibson describe the men as

black males, and stated he did not recognize them and that they were wearing bandanas

covering their faces. He was unsure if there was a fourth person outside of the door. Gibson

recalled hearing a gunshot, and then the perpetrators running out.

8. Walter Bowman died en route to the hospital.

15

The Initial Investigation

9. On September 19, 2000, at around 7 a.m., Heather Somerset, a United States

Postal Service carrier who lived in Fairview saw what appeared to be bandanas and gloves on

the side of the road not far from the Bowman home. She called 911 to let the police know.

10. Buncombe County Sheriff Crime Scene Technician Eddie Davis and other law

enforcement officers, responding to this call, found three bandanas and four gloves along a

stretch of road near the Bowman house. The bandanas and gloves were positioned on each

side of the narrow road, spaced out as if they had been thrown out of a moving car. The items

looked new, and appeared as if they had recently been discarded. Davis placed all of these

gloves and bandanas into evidence envelopes and logged them on a property control sheet.

11. Also on September 19, 2000, Detective John Elkins with the BCSO interviewed

several witnesses who had been at an Amoco service station near Reynolds High School (the

"Kounty Line Amoco"), just a few miles from the scene of the murder, the night before. These

witnesses reported seeing three black males arrive in a car near the time of the murder. Elkins

took into evidence the time-lapse surveillance camera VHS tape from the Kounty Line Amoco,

wrote on the sheet “Possible Evidence in Homicide,” and marked it as evidence in the Walter

Bowman case. The videotape showed three black males arriving in a car and coming into the

station at 11:19 p.m. on the night of the murder. The car left the station at 11:32 pm, just

minutes before the murder.

12. After the BCSO obtained this videotape, Detective George Sprinkle of the BCSO

interviewed two of the persons who were present at the Kounty Line Amoco. Jason Cope

reported that three black males had pulled up to the station and got out of a car, and that they

were “acting strange.” He indicated that the car was an older model, possibly a Buick or an

Oldsmobile, with a light vinyl top. Jack Holland, who was with Cope at the Kounty Line Amoco

on the night of the murder, also described the car as “old” and having a light vinyl top.

16

13. Sometime in late September, Cope and Holland were shown photographs of

Group B. Neither of the men picked out any member of Group B as a person who came to the

gas station the night of September 18th.

14. On October 16th and 18th, Sprinkle again showed Cope and Holland

photographs of Group B. This time, Cope stated that two of the photographs - those of

Kagonyera and Isbell - were similar to the persons at the Kounty Line Amoco the night of the

murder, but that he "wasn't sure." Holland stated that the only photograph that looked

familiar was that of Kagonyera. He was then shown a picture of Kagonyera's Chevy Impala and

asked if it was the same car he had seen that night. Holland said the car he had seen "was

longer and had a pointed front end," and that "[h]e didn't think this was the car."

15. On October 23, 2000, Detectives Sprinkle and Murphy interviewed Shaun

Bowman about the murder of his father, Walter Bowman. During this interview, Shaun

admitted that he had been present when his father was shot, but said he could not identify the

perpetrators because they were wearing bandanas.

16. Sprinkle and Murphy then told Shaun Bowman that the police had a video of

Kenneth Kagonyera’s car pulling into a convenience store near Bowman=s house just before

the murder, and that Wilcoxson was with Kagonyera.

17. What defendants Sprinkle and Murphy told Shaun Bowman was not true. On

October 16, 2000, when Sprinkle showed Jason Cope photos of Kagonyera=s car, Cope did not

identify it as the car he had seen at the Amoco station. On October 18, 2000, when Sprinkle

and Murphy showed Jack Holland photos of Kagonyera=s car, Holland told them the car he had

seen at the Amoco station, “was longer and had a pointed front end on it. He didn’t think this

was the car.” These two witnesses had also previously told Sprinkle that the car had a vinyl top.

Kagonyera’s car did not have a vinyl top.

18. After misleading Shaun Bowman about the evidence they had from the Amoco

station video, Sprinkle and Murphy showed him individual pictures (not in any photo spreads)

17

of Kagonyera, Wilcoxson, Brewton and Williams, and told Shaun that Kagonyera, Wilcoxson,

Brewton and Williams were the men who had broken into his house and killed his father.

Shaun told Sprinkle and Murphy that he knew Brewton and the “street names” of the other

men, but did not know them personally. However, Shaun Bowman told Sprinkle and Murphy

he did not see the faces of the men who entered his house on September 18, 2000, and could

not independently identify them as Kagonyera, Brewton, Williams and Wilcoxson.

19. Sprinkle and Murphy then caused Shaun Bowman, based on the false

information that they had provided to him, to write a false and misleading statement claiming

that he “got a good look at the gunmen” and that they were Kagonyera, Brewton, Williams and

Wilcoxson. In writing this statement, Shaun Bowman relied upon the false information that

Sprinkle and Murphy had told him.

20. Murphy also wrote a report stating that Shaun Bowman had specifically

identified Wilcoxson as one of the four men who broke into his house and that Shaun “thinks

Detroit [Wilcoxson] was the triggerman.” This report was false. On March 10, 2011, an

attorney from the NCIIC took Sprinkle=s deposition under oath. During this deposition,

Sprinkle admitted that Shaun Bowman had told him he did not know Wilcoxson, and only

recognized him by name.

Crime Stoppers Tips

21. At 7:10 a.m. on September 20, 2000, the BCSO received the first Crime Stoppers

tip relating to the murder of Walter Bowman: that the three black males who committed the

Bowman invasion and homicide were Lacy “J.J.” Pickens, Robert Rutherford, and Bradford

Summey. All were known to the BCSO as being involved in drug distribution in Buncombe

County.

22. On the night of the murder, Pickens owned a 1971 Oldsmobile Cutlass Supreme

with a vinyl top. Buncombe County deputies knew this, as they had given Pickens at least two

traffic citations in recent months while driving this car. Despite this, the fact that the murder

was drug-related, and the information obtained from Jason Cope and Jack Holland, Sprinkle and

18

Murphy did not question Pickens about the Bowman murder. Neither did Sprinkle or Murphy

show Cope and Holland any lineups containing photos of Pickens, Rutherford or Summey, or of

Pickens’ car.

23. At some point in time, Sprinkle wrote on the Crime Stoppers document that

Pickens had been in custody “since September 14, 2000.” This was inaccurate. Pickens had

been serving weekends only, and would report to the Buncombe County Detention Facility

Friday evenings and be released Sunday evenings. Pickens had been released from the jail the

night before the murder, on September 17, 2000.

24. Although the initial Crime Stoppers tip included information specifically

identifying where Rutherford was living, Sprinkle and Murphy made no effort to find or

interview Rutherford about the Bowman murder. Nor did they attempt to find or interview

Summey, or any of the known associates of Rutherford, Pickens or Summey.

25. On September 23, 2000, the BCSO received an anonymous Crime Stoppers tip

that Kenneth Kagonyera, Aaron Brewton and Larry Williams were involved in the murder of

Walter Bowman. 1

26. In all, four Crime Stoppers reports implicating members of Group B were

received between September 20 and October 31, 2000. While the callers were anonymous,

each report includes the caller's date of birth. Of the four reports implicating Group B, two had

callers with birthdates of "10/26/74." The other two had birthdates of "2/26/74" and

"10/24/76." Thus all of the callers' birthdates were extremely similar either phonetically or by

transposed digits. All of the callers were female.

27. The caller in the four "Group B" reports gathered her information by overhearing

people talking about the murder in her community, not from any first-hand knowledge. For

example, the second report received on September 23rd states that "[c]aller advise [sic] that

she overheard someone talking about the invasion that happen [sic] in PVA that they where

[sic] the same people."

19

Initial Media Coverage

28. The first print article related to the murder of Walter Bowman ran in the

Asheville Citizen-Times on September 20, 2000. Despite the fact that the investigation was

barely underway, Sheriff Bobby Medford provided the newspaper numerous details of the

crime, including the facts that the murder occurred at around 11:30 p.m.; that three men

perpetrated the crime; that they "ordered everyone to get down on the floor”; that one of the

men grabbed a young woman "by the hair in the kitchen”; and that the woman was being so

held when a single shot was fired in a back bedroom. The article also advised that Crime

Stoppers was offering a $3,000.00 reward for information leading to the arrest and conviction

of the perpetrators.

29. The local television news station, WLOS, was also running stories on the murder

during the days following the crime.

30. As the Crime Stoppers reports indicate, in addition to coverage in print and visual

media, in the days following the murder there was a great deal of public discussion about the

murder, including speculation about the identity of the perpetrators and about various details

of the crime that had been leaked from the true perpetrators, the Bowman family, investigators

or even Sheriff Medford himself.

Statements by the "Group B" Suspects

Larry Williams

31. On September 24, 2000 Detective Murphy of the BCSO and Detective Forrest

Weaver of the Asheville Police Department interviewed Larry Williams. No report of this

interview was written, although it lasted more than an hour.

32. On September 25, 2000, Murphy and Sprinkle interviewed Larry Williams again.

He denied any involvement in or knowledge of the homicide.

20

33. The next day, on the afternoon of September 26th, Constance and Weaver

interviewed Williams for a third time about the Bowman murder. Williams denied, once again,

having anything to do with murder.

34. Buncombe County Sheriff Bobby Medford was present for this interview.

Williams was put into an interrogation room with Sheriff Medford, without Constance or

Weaver. Medford falsely told Williams that the police had “proof” he was involved in the

murder. Medford screamed at Williams and told Williams he would serve life in prison if he did

not implicate himself and others in the murder. Medford then fed Williams detailed

information about the Bowman homicide through a series of leading questions. Terrified by

Medford and his threat, Williams agreed to confirm what Medford claimed had happened.

35. When defendant Medford walked out of the interrogation room, he told

Constance and Weaver that Williams had confessed. Williams then gave a false statement to

Constance repeating the details of the crime that Medford had provided to him. The statement

falsely claimed that Williams was present in Wilcoxson’s van outside the Bowman house when

the murder occurred, and that Kagonyera, Brewton and Wilcoxson entered the house. Williams

said Wilcoxson carried a shotgun. Williams further falsely claimed that he had heard a shot,

and that everyone ran back to the van and drove back to Asheville. Defendant Medford

provided all of these details to Williams.

36. At the end of the interview with Constance, Williams asked to speak privately to

Detective Weaver, who was the only law enforcement officer not employed by Medford, and

was also the only detective involved in this investigation who was African-American. Williams

immediately told Weaver the statement he had just given was a lie. After Constance re-entered

the room, Williams again stated he had lied because he was scared of Sheriff Medford. He said

that he was not present during the shooting of Walter Bowman, and that he was not with

Kagonyera, Brewton and Wilcoxson during any homicide.

37. On September 28, 2000, at approximately 7:00 p.m., Constance and Medford

21

returned to interrogate Williams again. Williams again said that the statement he had given on

September 26 was not true, and was made out of fear. He said he had never been to the

Bowman house in Fairview. He became emotional and told Constance and Medford that

neither he nor Wilcoxson had anything to do with the Bowman murder.

38. On October 11, 2000, Murphy again interviewed Larry Williams. Williams

reported that another inmate named "Little Roy" had told him Damian Mills had something to

do with the murder. Murphy wrote in his report that Williams said the details this inmate knew

about the murder were “just as Sheriff Medford had told Larry.” The language of the report

confirmed that Medford had fed the details of the crime to Williams on September 26, 2000.

Despite this, neither Murphy nor Sprinkle followed up with Williams (or Medford) about what

Medford had told him. They did nothing to determine if Medford had in fact schooled Williams

in the details of the Bowman murder.

39. Larry Williams was interviewed a seventh time on October 24, 2000, by

Constance and Murphy. Williams re-asserted his denial of involvement in the Bowman

homicide. He stated he was "afraid of Bobby Medford and Ron Moore," and began to cry. He

was then placed under arrest and charged with first degree murder.

40. Immediately after being charged, still on October 24, Williams asked for an

attorney. He then stated that he wanted to continue talking about the case. At that point, he

was advised that he needed to “start thinking about himself.” Williams, who had no lawyer or

adult with him in the room, and was terrified of spending the rest of his life in prison, again

falsely confessed to the murder and implicated Wilcoxson.

41. Williams now claimed, for the first time, that all six members of Group B had

been involved. Among other details, he stated that they had driven two vehicles to Fairview -

Kagonyera's Chevy Impala and Wilcoxson's Ford van - and that he was the only person that

stayed in the van. He stated that five people - Isbell, Williams, Mills, Kagonyera and Wilcoxson -

entered the Bowman residence, and that Kagonyera drove his blue Chevy Impala into the

Kounty Line Amoco after the murder.

22

42. Three days later, on October 27th, Williams recanted again and said that he and

Wilcoxson were not present at the murder.

43. Larry Williams pled guilty to second degree murder on February 25, 2002. He

was sentenced to 100-129 months incarceration.

Teddy Isbell

44. Early in the day on September 18th, 2000, Kenneth Kagonyera and other

individuals had performed a breaking and entering at an apartment in Pisgah View. The victim

discovered that Kagonyera had participated in the break in, and was looking for him with a gun.

Teddy Isbell learned that the victim was looking for Kagonyera, and advised Kagonyera of that

fact. Kagonyera asked Isbell to retrieve a gun from Anita Finlay's apartment. Kagonyera often

traded Isbell crack cocaine for various services, so Teddy retrieved the gun and gave it to

Kagonyera in the early evening of the 18th.

45. On September 25, 2000, Isbell approached his friend and confidant, Matt

Bacoate, about concerns he had related to the weapon he had given to Kagonyera. He had

heard rumors on the street that Kagonyera had committed the robbery of the Bowman

residence, and Isbell was concerned that the gun he had provided was the weapon used in the

murder. Isbell was worried that the gun would be found and his fingerprints would be on it.

46. Matt Bacoate operated a program called "Life on Life's Terms." Life on Life's

Terms was an unaccredited amalgamation of a substance abuse rehabilitation facility,

alcoholics/narcotics anonymous meeting house and halfway house. Bacoate had a unique

relationship with District Attorney Ron Moore, and criminal defendants (and defense attorneys)

often found that they could secure favorable resolutions to pending charges for clients who had

enrolled in Bacoate’s program. Isbell had been a client of Life on Life's terms, and had become

friends with Bacoate.

47. Once Isbell told Bacoate of his concerns related to the shotgun supplied to

23

Kagonyera, Bacoate called the Sheriff's Office and set up a meeting. Unbeknownst to Isbell at

the time, Bacoate would receive a Crime Stoppers reward for turning Isbell in.

48. On September 25th, Lt. Sam Constance met with Isbell, Bacoate and Isbell's

girlfriend, Annette Hines, at Life on Life's terms. Isbell told Constance that he had overheard

Kagonyera and Robert Wilcoxson at a dice game talking about being involved in the murder of

Walter Bowman. Isbell stated he had provided Kagonyera with a gun earlier in the day on the

18th for Kagonyera's protection, and that he was worried that gun was used in the Bowman

homicide and that his fingerprints would be on it. That interview terminated and Constance

left.

49. Later that night, Constance contacted Bacoate and asked him where Isbell was.

Bacoate had provided Isbell and Hines with a motel room to help Isbell come down from a

lengthy crack cocaine binge. Bacoate told Constance where Isbell was staying, and Constance,

along with numerous other members of law enforcement, took Isbell and Hines back to the

Buncombe County Sheriff's Office.

50. The night of September 25th, Isbell was interviewed by Constance and District

Attorney Ron Moore. Matt Bacoate was also present. The report of the interview from the

BCSO notes that Isbell was extremely nervous and repeatedly questioned whether he was a

suspect in the homicide.

51. Isbell told Constance he had he had been smoking crack cocaine for three weeks

straight, and had been “strung out” for three days without any sleep. According to Bacoate,

Isbell was obviously under the influence of drugs at the time. In fact, Constance admitted in a

recorded interview with an investigator for the NCIIC on February 16, 2011 that Isbell was

under the influence of drugs when he was interviewed on September 25, 2000.

52. Isbell gave Constance at least three different and inconsistent stories on

September 25th, each incorporating different facts that he had picked up through

conversations with investigators, the media, or word on the street. Initially, when interviewed

24

at Life on Life's Terms, Isbell claimed he had overheard Kagonyera at a dice game saying he

(Kagonyera) was involved in the Bowman murder and that Robert Wilcoxson was the shooter.

53. According to Constance’s report, during his second interview that lasted three

and one-half hours, Isbell stated he was involved in planning a robbery of Bowman, but denied

being present during the murder. Isbell also claimed that Larry Williams had told Isbell that he

(Williams) was present during the murder.

54. Isbell then changed his story about the dice game, and claimed it was his

girlfriend, Annette Hines, who had overheard Kagonyera admitting to his involvement in the

murder and claiming that Wilcoxson was the shooter. Hines, interviewed separately, denied

this.

55. Finally, Isbell changed his story again. He told Constance he had been in

Wilcoxson’s van with Kagonyera and Williams on the night of the murder, but had gotten out of

the van earlier that evening, hours before the murder was committed.

56. According to Bacoate, during this second interview at the Sherriff’s Office, Isbell

was “rattling,” “contradicting himself,” “saying all kinds of stuff and just talking.” Constance’s

interrogation of Isbell lasted for three and one-half hours and made Bacoate “physically sick.”

Isbell was “visibly high out of his brain at that time.” He was “talking like a drunk,” was “not

coherent,” and “rambled for entire time.” None of this information was included in

Constance’s written report of the Isbell interrogation.

57. Bacoate summarized the interrogation:

I was listening to this stuff and it was just too much inconsistent, just rambling for me. So I started getting sick because I saw that it was getting to be a murder charge for somebody that, in my best opinion, I really don’t believe was involved, and I’m truly not believing he was involved. So it made me sick, and I had to leave at 10:30 [pm], sick.

58. At no time on September 25th did Isbell claim to have any personal knowledge

25

of what happened at the Bowman house on the night of the murder, or of Robert Wilcoxson=s

involvement in the murder of Walter Bowman.

59. At the conclusion of the second interview of September 25th, Isbell was arrested

and charged with possession of a firearm by a felon.

60. Isbell was questioned again on September 28th, 2000 by Constance and Moore.

In this interview, Isbell recanted his earlier statements and advised that he had lied. He went

on to state that he had spent September 18 smoking crack with Leon Bowman at Pisgah View

Apartments. The report from the September 28 interview states that Isbell implicated

Kagonyera, Wilcoxson and Damian Mills, but told investigators that he and Larry Williams had

nothing to do with the Bowman break in and homicide.

61. On October 10, 2000, Isbell was interviewed for the fourth time. During this

interview Isbell provided no new substantive information, and advised that he would exercise

his 5th Amendment rights and decline to answer further questions. Isbell stated he would

provide a DNA sample for testing.

62. On October 11, 2000, Isbell was interviewed a fifth time for half an hour by

Constance. There is no report from that interview.

63. Isbell entered an Alford plea to accessory after the fact for first degree murder

on March 28, 2002.

64. Isbell filed a motion to withdraw that plea on September 9, 2002, which was

ultimately granted.

65. Isbell entered a second plea, this time for conspiracy to commit armed robbery,

on December 11, 2003. He was sentenced to 66-89 months incarceration.

Damian Mills

66. Damian Mills was first interviewed on October 11, 2000. During the interview,

26

Mills denied having anything to do with the Bowman homicide, and offered to take a polygraph

test and DNA samples.

67. Mills was arrested and charged with first degree murder on October 24, 2000.

68. Immediately after his arrest, Mills was placed in an isolation unit at the

Buncombe County Detention Facility, where he remained until his plea was entered the

following summer. While in isolation, Mills was housed separate and apart from other inmates,

and was allowed only one hour outside of his cell each 24 hour period.

69. Mills was interviewed again on October 25th, without a lawyer present, at which

time he again denied any involvement in the murder.

70. On October 26, 2000, Constance and Elkins interviewed Damian Mills a third

time, this time for almost five hours. Although Mills had been arrested for the murder two days

earlier, the interview was again conducted without any attorney being present. At this time,

Mills believed that Constance and Elkins were trying to make him the triggerman. Mills

eventually confessed and implicated Wilcoxson, Kagonyera, Williams and Aaron Brewton in the

murder of Bowman, and stated that he had no knowledge of what was going on and that he

had remained in the car the entire time. He said they traveled to Fairview in Kagonyera's Chevy

Impala and made no reference to anyone riding in a second car. He did not mention Teddy

Isbell.

71. Having been shown the statements of his co-defendants during discovery, and

facing the possibility they would testify that he was the shooter, Damian Mills pled guilty to

second degree murder on June 26, 2001. He was not sentenced until sometime in 2002, when

he received 120 to 153 months incarceration.

72. Mills filed several motions after his plea. The first was a pro se motion to

withdraw his plea on February 7, 2001, which was denied on September 7th of the next

calendar year. Two days later, on September 9th, 2002, Mills filed a second pro se motion to

27

relieve his attorneys and again requested that his plea be withdrawn. That motion was denied

on the same day.

73. On December 18, 2013, Damian Mills testified before an 8-member panel of the

N.C. Innocence Inquiry Commission. When asked why he pled guilty when he was in fact

innocent, Mills stated that he entered a plea because he "thought it was in [his] best interest."

He testified that he had read the statements of his co-defendants and knew they would testify

against him. He said he was worn down by being kept in isolation, and seeing that he could get

a deal to serve 7 to 10 years, made the decision to plead guilty and move on with his life, rather

than risk life in prison or the death penalty.

Kenneth Kagonyera

74. Kenneth Kagonyera was first interviewed by Constance and Sprinkle on

September 24, 2000 at the Buncombe County Detention Facility. He was being held on

unrelated charges at the time. At that time Kagonyera denied involvement in the homicide and

the interview was terminated.

75. A second interview with Kagonyera was conducted on October 20, 2000.

Kagonyera again denied involvement, stating he was in court on other charges and with his

girlfriend the day of the Bowman murder. He offered to provide DNA samples and take a

polygraph test to prove his innocence.

76. Around October 27th, Kagonyera was interviewed a third time. During that

interview he denied involvement in the Bowman homicide, but did admit to breaking into an

apartment at Pisgah View earlier in the day on September 18th. He stated that following that

break-in he had received word that the victim was looking for him, and that he asked Teddy

Isbell to retrieve a gun for him. Kagonyera further stated that he had seen Larry Williams,

Robert Wilcoxson and another man riding around in Wilcoxson's van on September 18th, but

that he had not been with them.

28

77. Kenneth Kagonyera maintained his innocence for over a year, and refused to

make any deal with the District Attorney’s office. During this time he told his lawyers that he

was innocent and rejected various plea offers.

78. During the time he was in jail facing these charges, Kagonyera received the

discovery showing that Isbell, Williams and Mills had all falsely implicated him in the Walter

Bowman murder. His lawyers told him that all three would testify against him at trial, by which

time they would “have their stories straight,” and that it would be hard to show they were

lying, particularly since Mills was his cousin. His mother, his aunt and his grandmother pleaded

with Kagonyera to enter into a plea bargain, because they feared he would be convicted at trial,

based on the statements of Isbell, Williams and Mills, and would spend the rest of his life in

prison.

79. On November 29, 2001, as part of a plea agreement to avoid the death penalty

or life in prison without parole, Kagonyera made a statement implicating all six Group B

co-defendants. The details in that statement were all derived from the discovery, which

contained the statements of Isbell, Williams and Mills. Specifically, he stated that the six young

men went to Bowman's house in Wilcoxson's van and Kagonyera's Chevy Impala, that everyone

but Isbell went into the house, that Wilcoxson was the shooter, and that Brewton took all the

weapons after the invasion. None of what Kagonyera said in that statement was true.

80. Kenneth Kagonyera pled guilty to second degree murder and other unrelated

charges on December 13, 2001. He made numerous post-conviction motions seeking to set

aside his convictions, which are detailed below.

81. Pursuant to the general statutes governing the NCIIC, beginning on September

12, 2011, Judges Bradley Letts, Patrice Hinnant, and Erwin Spainhour conducted a hearing on to

determine Kenneth Kagonyera's factual innocence. After eight days of evidence presentation,

he was exonerated and unanimously found to be factually innocent by the three judge panel on

September 22, 2011. This finding, of course, stands in direct contradiction to the inculpatory

statements given investigators by Kagonyera, Williams, Isbell and Mills.

29

Robert Wilcoxson

82. Detectives Murphy and Sprinkle first met with Robert Wilcoxson on September

25, 2000. Wilcoxson had voluntarily come to the police station because he heard the police

were looking for him, and was interviewed about the Bowman murder. He denied any

involvement in or knowledge of the murder, and offered to take a polygraph. At that time

Wilcoxson was arrested and charged with felony fleeing to elude after a car chase in which

Wilcoxson the day before.

83. On September 26, 2000, Murphy again interviewed Wilcoxson. Wilcoxson again

denied any involvement in the murder of Walter Bowman.

84. The same day, Detective Sandy Clementson interviewed Dea Johnson,

Wilcoxson’s girlfriend. She told the detective that she and Robert Wilcoxon had been at her

home in Asheville at the time the murder had taken place. She also corroborated Larry

Williams’s assertion that he had spent the night in Wilcoxson=s van at Ms. Johnson=s

grandmother’s residence.

85. On October 24, 2000, Robert Wilcoxson was charged with the first-degree

murder of Walter Bowman. At the time, Wilcoxson was 21-years-old and had no prior record.

He was told that Buncombe County District Attorney Ron Moore would likely seek the death

penalty.

86. Wilcoxson was never interviewed again. He was, however, given discovery by his

attorney in the following months, including statements made by his co-defendants implicating

him in the murder. In addition, at the time he was facing several additional charges that could

have resulted in significant jail time. Therefore, like each of his co-defendants, Wilcoxson

agreed to plead guilty to second degree murder, and entered that plea on August 15, 2002.

87. On September 11, 2002, Wilcoxson was sentenced to 150-189 months.

30

88. On October 21, 2002, Wilcoxson filed a pro se motion to vacate his guilty plea.

That motion was denied without a hearing.

89. Like Kenneth Kagonyera, Robert Wilcoxson also petitioned the NCIIC for review

of his case, and like Kagonyera, he was unanimously determined to be factually innocent

following the September, 2011 evidentiary hearing.

90. When asked why he entered into that plea during the 2011 NCIIC hearing,

Wilcoxson testified:

“Because I was kind of stuck between a rock and a hard place. I had a few other charges, Schedule II, possession of stolen property, high-speed chase and a lot of charges for that. My lawyer told me I was facing fifteen to eighteen years with that alone if they boxcarred the numbers. Even if I beat that, I had to fight the murder charge. So I weighed out my options. I could take it to trial and beat the murder charge and still get fifteen to eighteen years, or I could - and my daughter wasn't born, so that was the main weighing the scale. I didn't want her to have a life without a father, so I ended up taking the plea.”

State v. Wilcoxson NCIIC Evid. Hearing Tr. vol. VI, 891:17-892:2, Sept. 20, 2011.

Aaron Brewton

91. Aaron Brewton was arrested on September 25, 2000 on outstanding warrants

for probation violation and was interviewed by Detective Sprinkle. Brewton advised Sprinkle

that he knew Wilcoxson, Williams and Kagonyera as well as members of the Bowman family.

He stated that the night of the murder he was with his girlfriend and that he had nothing to do

with the home invasion and homicide.

92. On October 11th Brewton was interviewed by Detective Murphy. At that time

he agreed to provide DNA material for testing. That consent was withdrawn on October 12th.

93. In August, 2002, Brewton, his attorney, David Belser, and Matt Bacoate met with

DA Ron Moore.

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94. Despite being his implicated in one or more of the various statements made by

Williams, Kagonyera and Mills, and being identified as the shooter by Mills and Williams at

various times, all charges against Aaron Brewton were dismissed on August 26, 2002. A

condition of the dismissal was that Brewton enroll in Life on Life’s Terms.

The District Attorney’s Opinion of the Interview Evidence

95. At the sentencing of Williams, Wilcoxson, Mills and Kagonyera, DA Moore

characterized the statements made to the investigators - and to Moore himself - during the

investigation:

“The State believes - and again, one thing I would tell the Court, there have been various statements made by various defendants at different times, and witnesses, so it’s hard to figure out exactly who did what where, but the State believes that the folks went out there with the intention of robbing Sean Bowman.” [Emphasis supplied.]

96. In open court, District Attorney explained why he was dismissing Brewton’s

murder charge:

"I do have the son of the victim who says this defendant was there . . . . I have other co-defendants who have incriminated this defendant. At this point I don't think I have evidence to proceed in a first degree murder case."

97. Moore had no more evidence against Williams, Kagonyera, Wilcoxson and Mills

than he did against Brewton. Unlike his co-defendants, however, Brewton had refused to

buckle.

Exculpatory Evidence

2001 Exculpatory DNA Evidence

98. On November 2, 2000, the gloves and bandanas recovered near the scene of the

Bowman murder were submitted to the state SBI lab by Detective Sprinkle. Sprinkle asked the

SBI to compare the DNA samples submitted by Isbell, Williams, Mills, Kagonyera and Wilcoxson

to any genetic material that could be recovered from the physical evidence.

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99. On March 7, 2001, the SBI completed DNA testing. The results established that

the genetic material recovered from the bandanas and gloves did not come from any member

of Group B.

100. Thus, as early as the spring of 2001, before any suspect pled guilty to any charge,

the District Attorney knew that Isbell, Williams, Mills, Kagonyera and Wilcoxson were all

excluded as possible contributors to the DNA recovered near the Bowman residence.

101. Despite the exculpatory nature of these results, the District Attorney's Office did

not provide the results to defense counsel for Williams or any other member of Group B, either

before or after entry of Group B's guilty pleas.

The 2003 Confession of Robert Rutherford

102. On March 27, 2003, DEA Special Agent Barnabas Whiteis was contacted by

Robert Rutherford, who was then an inmate at the Federal Correctional Institution in

Manchester, Kentucky. Whiteis knew Rutherford from previous involvement in Rutherford's

arrest and prosecution for drug trafficking in Western North Carolina in late 2000. Rutherford

told Whiteis that he had been involved in a homicide in Fairview in 2000, and that he wanted to

provide information on that murder to ease his federal sentence. At the time, Whiteis was

assigned to the DEA Office in Charlotte and had no knowledge of the Bowman murder.

103. During the phone call on the March 27 and a subsequent phone call on the 28th,

Rutherford gave Whiteis a detailed confession to the murder of Walter Bowman. He stated

that in or around August of 2000, a woman named Dawana Bowens was dating both Shaun

Bowman and Bradford Summey. Bowens told Summey and Rutherford that Bowman had cash,

cocaine and marijuana -- totaling $108,000 in value -- in a bedroom in his residence in Fairview,

and the two decided to rob him. At the time, Rutherford was dating a woman named Jennifer

Regan, who also lived in Fairview only a few miles from Bowman. Regan showed Rutherford

and Summey the area. Rutherford told Whiteis that Lacy "JJ" Pickens decided to help in the

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robbery.

104. At this point in Whiteis's report the details become very specific. Rutherford said

that he, Summey and Pickens drove to Fairview in Pickens car, which he described as a 1970's

model blue Oldsmobile Cutlass sedan. He stated that the three men stopped at a convenience

store near Reynolds High School prior to the shooting. This was consistent with the statements

given by witnesses Jason Cope and Jack Holland, and with the videotape seized from the Kounty

Line Amoco station near Reynolds High School.

105. Rutherford stated the three men had driven out to the Bowman house and

parked the car a block or so from the home. He further told Agent Whiteis that he, Summey

and Pickens had initially hidden in the bushes by the house. He said all three entered the

Bowman house with bandanas over their faces, that Pickens and Summey had gloves on, and

that they had a handgun and a pistol-grip shotgun. This was all consistent with what the police

had been told by eyewitnesses shortly after the murder, and with the number of bandanas and

gloves found near the scene the next day.

106. Rutherford gave details of the attempted robbery and homicide that closely

matched the initial recounting of events given to the police on the night of the murder by the

eyewitnesses to the murder. For example, Rutherford accurately described Wanda Holloway

running into the kitchen when they first entered the house, he accurately described the

locations of the two bedrooms in the house, he accurately described the shotgun used, and he

accurately identified the room in which Walter Bowman was shot.

107. Agent Whiteis called the Buncombe County Sheriff’s office shortly after the two

phone calls with Rutherford, and informed a detective there of the substance of Rutherford’s

confession. Det. Sprinkle was told of this confession and on March 31, 2003, Sprinkle therefore

ran a Master Index record check of Rutherford.

108. On April 15, 2003, Agent Whiteis faxed his three-page report of Rutherford’s

confession to Captain Lee Farnsworth of the Buncombe County Sheriff’s Office. On the fax

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cover page, Whiteis included his personal telephone number in case the detectives there had

any questions. Whiteis did not hear back from anyone.

109. A post-it note recovered during the NCIIC's investigation of Wilcoxson’s and

Kagonyera's claims evidenced that on or around July 17, 2003, Captain Farnsworth forwarded

the confession to the District Attorney's Office.

110. Sprinkle, the BCSO, and the District Attorney did nothing to follow up on

Rutherford’s confession. They simply ignored this crucial exculpatory evidence, despite the fact

that other witness statements and physical evidence that law enforcement had in its possession

corroborated Rutherford’s confession.

Efforts of Kenneth Kagonyera to Obtain DNA Evidence

111. Though the District Attorney did not provide the exculpatory DNA results to

defense counsel for Group B, Kenneth Kagonyera was undeterred and engaged in a decade-

long pursuit of that report. His efforts began as early as November 2, 2000, when he made a

pro se written request for the results of the DNA testing. The request was addressed to BCSO

Evidence Technician Eddie Davis, DA Moore and the Buncombe County Clerk of Superior Court.

112. On August 6, 2001, he repeated his requested in another pro se “Motion to

dismiss and requests the results of DNA testing.”

113. Kagonyera again requested the results of the DNA test in the spring of 2003. On

May 29, 2003 the clerk of court responded to his request by referring him to appellate counsel

and noting that there would be charges for copying.

114. On June 20, 2003 Kagonyera filed a pro se motion for DNA test results. This

motion was denied, without explanation, by the Superior Court Judge Ronald Payne.

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115. In June of 2005 Kagonyera requested a copy of the lab results directly from the

BCSO. The Sheriff's Office responded by referring him to the district attorney.

116. On June 28, 2005, Kagonyera followed the BCSO's advice and wrote a letter to

Ron Moore requesting a copy of the SBI lab report. No response was received.

117. Kagonyera followed up on July 19, 2005 with a request to Ron Moore under the

Freedom of Information Act and Privacy Act. He was ignored.6

118. In August of 2005, Kagonyera again contacted the clerk of court and requested a

copy of the DNA analysis. The clerk's office again referred him to the district attorney.

119. Kagonyera never relented. On April 21, 2006, he filed an affidavit requesting

results of the DNA testing.

120. On September 12, 2006, Kagonyera filed a motion to compel the district

attorney's office to release the DNA testing results. The motion was never calendared or

otherwise addressed.

121. Even Kagonyera could not have foreseen what came next.

The 2007 CODIS Linkage

122. "CODIS" is an acronym for Combined DNA Index System, a database used by

crime labs nationwide to index and store DNA information from felony offenders and crime

scenes. DNA profiles detected on items of evidence collected in a local criminal investigation

are uploaded to CODIS, where those profiles are scanned against the CODIS database. The

CODIS database is constantly up-dated with the profiles of newly convicted offenders. When a

freshly acquired profile is determined to match a profile in the database - that is, a profile

acquired during the investigation of a specific crime and, thereafter, stored in the CODIS

6The possibility exists that Kagonyera’s letters and requests were passed along to Al Messer, the attorney who had last represented him, although the record is silent on this point.

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database - CODIS generates a report of that match and forwards the report to the relevant law

enforcement agencies and/or prosecutorial entities.

123. In March of 2007, a CODIS match report was generated: DNA extracted from the

gray bandana found near the Bowman residence matched a profile that had been uploaded to

CODIS in 2006. The source of that profile was Bradford Summey.

124. After confirming the match through further testing, on June 25, 2007, SBI

Forensic Biologist Timothy Baize telephoned Detective Sprinkle to advise him of the hit.

Detective Hilliard called Baize back, and told him that Sprinkle no longer worked at the BCSO.

Hilliard referred him to Lt. John Elkins, a supervisor in the Criminal Investigations Division. Baize

then called Elkins and left him a voicemail detailing the CODIS hit and asking for a return call.

125. Elkins called Baize back on June 26, 2007. Baize gave Elkins the name of the

matching individual (Bradford Summey) along with Summey's identifying information. At that

point, the SBI protocol required that a new DNA sample be obtained from Summey for further

confirming analysis. Obtaining this new sample is the duty of law enforcement. Neither Elkins

nor anyone else at BCSO ever obtained an additional sample.

126. Baize sent a formal report to BCSO on October 1, 2007. The report read:

“NOTIFICATION OF CODIS HIT

“Upon a routine search of the North Carolina CODIS state database, the DNA profile obtained from the cutting from the gray bandana (Item 1-1 previously submitted and analyzed) matched to a convicted offender with DNA database number 2006-00021.7

The identity of this donor was conveyed to Lieutenant John Elkins of the Buncombe County Sheriff’s Department on June 26, 2007 by S/A Timothy Baize. Analysis in this case is not considered complete until a DNA standard has been obtained from this individual and submitted for comparison purposes.”

127. SA Baize’s notification was addressed to Detective Eddie Davis, who was the

7Bradford Summey.

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BCSO evidence technician who had submitted the evidence. A copy, signed by Baize and by SBI

Director Robin Pendergraft, was sent to DA Ron Moore, according to a notation on the

document.

128. Davis never contacted Baize, and never provided a new DNA sample from

Summey.

129. On April 28, 2011, Baize testified, under oath, before the NCIIC:

Baize: These reports, one would have gone to the DA’s office or should have gone to the DA’s office, and another one should have gone to the name on this report, which was Detective Eddie Davis.

Counsel for NCIIC: And Eddie Davis from the –

Baize: Buncombe County Sheriff’s Department.

Counsel: And which DA’s office?

Baize: The Buncombe DA’s office.

130. In fairness to the District Attorney, it should be noted that, in 2007, the SBI lab

maintained no system for confirming receipt of mailed reports. Only the first page of the report

would have been mailed to the DA’s Office and that page reported that the DNA from an

unnamed individual directly matched the DNA located on evidence seized in the case. DA

Moore, of course, had been aware since 2001 that DNA evidence excluded those convicted of

the murder, so that the match, of necessity, would have been to someone other than Williams,

Kagonyera, Wilcoxson, Mills, Isbell or Brewton.

131. Further, it is difficult to believe that DA Moore, at a time when he was seeking a

court order to have Rutherford’s DNA obtained by BCSO personnel and tested by the SBI

(discussed infra), would not have learned of the CODIS hit from detectives in the same

department, even in the unlikely event that he did not receive the copy sent to him by the SBI.

132. In his July 29, 2008 response to Kagonyera’s motion for appropriate relief, DA

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Moore had informed the court that “[t]he State has no reason to believe that any of the

statements made by Robert Rutherford have any reliability . . . .” The CODIS link report,

however - delivered to the BCSO ten months earlier - certainly was one such “reason to

believe.”

133. Jamie Lau and the staff of the Innocence Commission, for their part, did provide

Baize with a new sample from Summey. That allowed Baize to confirm that the DNA on the

gray bandana recovered near the Bowman residence was an identical match to Brad Summey's

DNA. Baize testified that the statistical odds that the DNA material on the bandana was

provided by any person other than Summey was approximately one in one trillion.

134. In addition to providing the SBI lab with Summey's DNA, in 2010 and 2013 the

NCIIC had LabCorp, a firm nationally recognized in the area of DNA profiling, re-analyze the

gloves and bandanas and compare any DNA material that was extracted to both Group A and

Group B. The results were compelling.

135. First, the analyses performed by LabCorp confirmed what the SBI report had

shown ten years earlier - that each and every member of Group B was excluded as a possible

contributor to the DNA found on the items tested.

136. More interesting, the LabCorp tests linked each of Lacy Pickens, Bradford

Summey, and Robert Rutherford to various items. Meghan Clement, an employee of LabCorp,

testified before the NCIIC on December 16, 2013 about the results of LabCorp's testing.

137. Clement reported that a DNA mixture was recovered from two brown gloves, a

left and right. All of Group B was excluded from contributing to that mixture, as were

Rutherford and Summey. However, Lacy Pickens could not be excluded as potentially

contributing to the DNA found on those two items. Clement further stated that the DNA

mixture recovered from the gloves contained a rare allele. She said that only .03% of the

African American population has that particular allele. Therefore, 99.7% of the African

American population would not have that particular genetic marker, and would be excluded as

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contributing to that particular DNA mixture. Lacy Pickens' DNA had that rare allele.

138. Moreover, there was sufficient DNA on the left hand glove to demonstrate a

statistical unlikelihood that the source of the genetic material was someone other than Lacy

Pickens. Before the NCIIC, Clement stated that it was estimated only 1 African American out of

299 would have DNA that could have contributed to the DNA mixture recovered from the left

hand glove.

139. Clement further testified that Robert Rutherford's DNA could not be excluded

from a red bandana recovered near the scene of the Bowman homicide. A mixture of various

persons' DNA was recovered from that item, and all of Group B as well as Summey and Pickens

were excluded as possible contributors to that mixture. Rutherford, however, could not be

excluded as a possible contributor. Clements testified that statistically, the probability of

randomly selecting an individual unrelated to Robert Rutherford with a DNA profile that would

be included in the mixture of DNA obtained from that glove was approximately 1 in 21,030 for

the African American population.

Kagonyera’s Motion for Appropriate Relief

140. In February, 2008, Kagonyera filed a pro se Motion for Appropriate Relief. The

motion sought to have his conviction vacated on grounds that the state had failed to disclose

exculpatory DNA comparison evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963),

and that newly discovered evidence (Robert Rutherford's confession) existed which could

establish his innocence.

141. Of course, Kagonyera had no inkling of the CODIS report, the most powerful

evidence that he had been right all along.

142. Nevertheless, on March 20, 2008, Kagonyera’s voice was finally heard.

Buncombe County Superior Court Judge Ronald Payne – the same judge who had earlier denied

Kagonyera’s request for DNA test results – entered an order requiring the district attorney's

office to file a response to the MAR.

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143. The DA’s Office filed a motion for a review of defense files and the attorney who

had represented him at sentencing turned over a copy of his entire file for an in camera

inspection.

144. On July 30, DA Moore filed his response to the Kagonyera MAR, as Judge Payne

had ordered him to do. In his response, Moore acknowledged possession of the 2001 DNA

comparison results which Kagonyera had been seeking for eight years.

145. Moore also admitted that “[t]he statement referred to by Robert Rutherford [sic]

was received by the State in July of 2003".

146. Rather than disclosing the DNA results and the Rutherford statement to

Kagonyera, as Kagonyera’s motion had requested, Moore chose to minimize the exculpatory

value of both:

4. The State has no reason to believe that any of the statements made by Robert Rutherford have any reliability . . . .

7. Various purported details in Rutherford’s statement undermine any credibility as to what Rutherford says and it appears that he was trying to curry favors with the Federal Government to help him on his Federal cases.

8. In fact, the name of Robert Rutherford and the individuals referred to by Rutherford in Paragraph 3 above1 had come in as a Crime Stoppers tip at the beginning of the investigation in 2000. One of the individuals named by Rutherford was actually in the Buncombe County Detention Facility for 2 ½ months including the date of the murder of the victim in this case, further undermining any credibility that Robert Rutherford has.

9. There were items recovered down the road in the vicinity of the home where the murder took place, including bandana and/or scarf like items and work gloves that were tested for DNA and compared with those of the Defendant and co-defendants with either negative or inconclusive results. There was no

11“Bradford Summey and Jay Pickens (whom the State believes is Lacy Pickens, III”

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comparison of Robert Rutherford or the individuals named by him in Paragraph 3 above, since the State does not consider Rutherford’s credibility liable [sic].

147. The response contained several significant misstatements. The assertion that

Pickens had been in jail on the night of the murder remained as inaccurate – and unexamined –

as it had been when Det. Sprinkle first made it nearly eight years earlier. Jail records clearly

establish Pickens had been released the day before the murder.

148. The 2001 DNA comparison results were anything but “inconclusive”. They had

unequivocally excluded Kagonyera and the Group B defendants. The duty of candor to the

Court required DA Moore to say as much in his response.

149. Moore informed the Court that the DA had “no reason to believe” Rutherford’s

statement. On the contrary, the District Attorney had significant reasons to believe or – at bare

minimum – to further investigate Rutherford’s assertions. The CODIS link of Brad Summey to

the gray bandana dramatically corroborated Rutherford’s account. An SBI DNA analyst has

testified that the protocol in effect in 2007 required him to notify DA Ron Moore in writing of

the CODIS linkage. The SBI CODIS report itself lists DA Moore as one of its recipients.

150. In July, 2008, however, DA Moore was granted one more opportunity to reach

the truth. In his response, he agreed to compare the DNA profiles recovered from the gloves

and bandanas to the DNA profiles of the Group A individuals – Robert Rutherford, Lacy Pickens

and Bradford Summey, as follows:

10. The State is willing to compare the DNA of the three individuals named in Paragraph 3 above with the bandana/scarves and work gloves found on the side of the road in the vicinity of the home where the robbery and murder occurred.

WHEREFORE THE STATE asks that the Court enter an order directing the State Bureau of Investigation to compare the DNA of the three individuals named above to that of the items recovered in the vicinity of the home where the murder occurred.

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151. On July 30, 2008, Judge Payne did exactly as DA Moore had requested, entering

an order directing the SBI to compare the DNA on the gloves and bandanas to DNA samples

from Rutherford, Pickens and Summey. Judge Payne further ordered the district attorney's

office to "provide the Court with such Orders as may be necessary for the collection of DNA by

August 15, 2008."

152. On August 15th, the deadline set by Judge Payne, the District Attorney's Office

filed a motion for a writ of habeas corpus to transport Rutherford from federal prison to the

Buncombe County Detention Facility. Judge Payne immediately granted that motion.

Rutherford arrived at the Buncombe County Jail on August 29, 2008.

153. On September 19, 2008, Detective Roney Hilliard interviewed Rutherford at the

request of Moore. In his report, Hilliard states that when asked if he was willing to talk about

the Bowman murder, Rutherford said he wanted to meet with Moore face to face. Hilliard

quoted Rutherford as saying "'I'll tell Ron the whole thing…but I need to meet him in person…

there is no need to go through a middle man…I'll tell him everything.'"

154. Moore never met with him.2

155. Rutherford was returned to federal prison on April 17, 2009. During the eight

months he was in Buncombe County, the District Attorney's Office never obtained a DNA

sample from him despite Judge Payne’s order that the comparison be made – an order issued in

response to a joint request from Kagonyera and DA Moore. In fact, there is no record that the

District Attorney's Office even attempted to obtain a DNA sample.

156. It is very unlikely that the BCSO would have returned Rutherford to federal

custody without consulting the District Attorney.

22More specifically, Moore never met with Rutherford in 2008-2009. Counsel is informed, believes and, therefore, alleges that , in 2011, in preparation for the hearing of the Kagonyera-Wilcoxson matter before the three-judge panel, DA Moore traveled to Kentucky to meet with Rutherford in federal prison.

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157. In his MAR, Kagonyera had requested appointment of post-conviction counsel

and a hearing on the issues raised in his motion. North Carolina General Statutes §15A-1420

sets out the procedure to be followed upon the filing of an MAR; § 15A-1420(b1) (Filing Motion

With Clerk; Review of Motion by Judge) provides:

The clerk, upon receipt of the motion, shall place the motion on the criminal docket. The clerk shall promptly bring the motion to the attention of the resident judge, or any judge holding court in the county or district. In noncapital cases, the judge shall review the motion and enter an order whether the defendant should be allowed to proceed without the payment of costs, with respect to the appointment of counsel, and directing the State, if necessary to file an answer.

158. N.C.G.S. § 15A-1420(c) (Hearings, Showings of Prejudice; Findings) provides:

(1) Any party is entitled to a hearing on questions of law or fact arising from the motion and any supporting or opposing information presented unless the court determines that the motion is without merit. The court must determine, on the basis of these materials, whether an evidentiary hearing is required to resolve questions of fact.

. . .(4) If the court cannot rule upon the motion without the hearing of evidence, it must conduct a hearing for the taking of evidence, and must make findings of fact. The defendant has a right to be present at the evidentiary hearing and to be represented by counsel. [Emphasis supplied.]

159. Judge Payne, however, did not appoint post-conviction counsel for Kagonyera.

No evidentiary hearing was held. Under North Carolina law, the District Attorney controls the

calendaring of all motions. Without an attorney, Kagonyera had no means to getting his motion

back before the court. Kagonyera’s motion never returned to the calendar after Judge Payne

ordered the DNA comparison.

160. Judge Payne retired from the Superior Court bench at the end of 2008. After his

departure, no further effort was made to comply with his order or with N.C.G.S. § 15A-1420.

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161. Similarly, there is no record that the District Attorney's Office ever attempted to

obtain a DNA sample from Bradford Summey, or that any attempt was made to locate DNA

samples previously taken from Pickens (who had been shot and killed by the Asheville Police

Department in 2006), although those samples were available in 2008.

162. Ultimately, Kenneth Kagonyera was able to benefit from the 2001 SBI DNA test

only after the results were discovered during the investigation of his claim to the NCIIC.

The Fresh Significance of the Kounty Line Amoco Security Video

163. Detective Elkins had obtained a videotape from the Kounty Line Amoco's security

system on September 19, 2000. The tape showed several different areas of the gas station,

including cameras from inside the store and cameras pointed towards the gas pumps and

parking areas, and covered the entire day of September 18, 2000.

164. After Elkins obtained the tape, he gave it to Detective Sprinkle. He did not,

however, require Sprinkle to sign for it or otherwise keep track of the chain of custody. In fact,

he failed to note the date on which he delivered the tape to Sprinkle.

165. It was not until October 23, 2000, that Sprinkle turned the videotape into the

evidence control room at the Buncombe County Sheriff=s Department. Between September

19, 2000 and October 23, 2000, it had never been turned into the BCSO evidence control room.

166. Prior to turning the tape into the evidence control room, Sprinkle obliterated the

most critical portion of the video - the four minutes beginning at 11:17 p.m., showing the car

with the three suspicious black males arriving and parking at the gas station, and then walking

up toward the front doors and entering the convenience store - by taping over it with a scene

from a television soap opera. This scene was from an episode of Guiding Light that was only

broadcast one time - on October 23, 2000 - the same day Sprinkle turned the tape into the

evidence control room.

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167. In 2010 the NCIIC sent the videotape to the SBI laboratory to determine if the

portion that had been taped over could be recovered, and if the rest of the video could be

enhanced. The SBI was able to recover only a few seconds of the four minutes that had been

taped over, and produced a few still frames from the recovered video. A still frame from the

recovered snippet of the video showed a full frontal view of the face of one of the black males,

who appeared to be Brad Summey.

168. The SBI could not recover the portion that would have contained the clearest

views of the three black males. Upon information and belief, the portion of the video

destroyed by Sprinkle showed that the three black males were Rutherford, Summey and

Perkins.

169. The SBI was also able to enhance the rest of the undestroyed video, and

produced still frames from some of the portions it enhanced. Stills from the enhanced video

showed a side view of a 1971 Oldsmobile Cutlass with a vinyl top.

170. This identification was confirmed during the 2011 NCIIC hearing for Kagonyera

and Wilcoxson, when John Flory, an expert in American classic automobiles, identified the

vehicle in the video tape conclusively as a 1971 or 1972 Oldsmobile Cutlass Supreme. When

asked whether the vehicle in the video could have been a Chevy Impala like the one owned by

Kagonyera, Flory unequivocally testified "[i]t's definitely not." State v. Wilcoxson NCIIC Evid.

Hearing Tr. vol. II, 268:19-22, Sept. 13, 2011.

171. North Carolina Department of Motor Vehicles records establish that Lacy “JJ”

Pickens - one of the three men named in the first Crime Stoppers tip, who could not be

excluded as a contributor of the DNA containing a rare allele found near the scene of the

Bowman murder, and who was implicated in the confession given by Robert Rutherford to a

DEA agent - was the registered owner of a 1971 Oldsmobile Cutlass Supreme on September 18,

2000.

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172. Pickens had been ticketed by law enforcement while driving the 1971

Oldsmobile on June 25th and July 1st, 2000.

The Pervasive Involvement of Matthew Bacoate III

173. In September, 2000, Matthew Bacoate III was the director of “Life On Life=s

Terms,” an organization ostensibly dedicated to assisting individuals beset with drug

dependency. Many of those enrolled in Life On Life’s Terms were simultaneously facing

criminal charges related to their drug use. Eventually, the rolls of the program included a

significant number of individuals who were charged with drug distribution but who were not

necessarily addicted to or dependent upon drugs. Bacoate enjoyed extraordinary access to and

influence with Buncombe County District Attorney Ron Moore - more access than most defense

attorneys. Moore’s consistent practice was to reduce charges against defendants who signed

up for Life on Life’s Terms.

174. Bacoate made his living providing information to the District Attorney and

peddling his resulting influence to criminal defendants. Bacoate was himself a convicted felon.

Although he professed to being a recovering addict, he had no formal training or background in

addiction counseling. The program was ostensibly a non-profit organization. Individuals paid -

often exorbitant sums - to participate.

175. Informants and cooperating witnesses were often recruited from among those

enrolled in Life on Life’s Terms. Among the defense bar, the program became known as “Life

on Ron=s Terms.” This ability to provide informants and pro-state witnesses was the source of

Bacoate=s value to DA Moore. In exchange, Bacoate was allowed to maintain his very lucrative

business.

176. The Bowman homicide provided an opportunity for Bacoate to demonstrate

anew his value to the District Attorney’s Office. Bacoate had a vested interest in the homicide

being solved and solved quickly - although not necessarily solved accurately. Former DA’s

Office Investigator Langdon Raymond recalls that, during the Bowman homicide investigation,

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Matt Bacoate frequently came to DA Ron Moore’s office with information “ . . . like he always

did.”

177. In the Bowman homicide investigation, Bacoate was most directly involved in the

fates of two Group B individuals, Teddy Isbell and Aaron Brewton. Bacoate’s involvement

produced contrasting results: he brought Isbell to the attention of law enforcement; he assisted

in disentangling Brewton from the matter.

178. In September, 2000, Teddy Isbell was a resident participant in Life on Life’s

Terms. Isbell’s first law enforcement interview about the Bowman matter took place on

September 25 at the Life on Life’s Terms facility. When Isbell was picked up by Lt. Constance

for a second interview later that same day, Isbell insisted that Bacoate and DA Ron Moore be

included in the meeting.8

179. Isbell was the last of the Group B defendants to plead guilty. He was permitted

to plead guilty not to the murder itself - as Williams, Kagonyera, Wilcoxson and Mills had done -

but accessory after the fact to second degree murder. He also received the lightest sentence of

the five defendants who entered guilty pleas, 66-89 months. Isbell received this favorable

treatment despite the fact that he had lied repeatedly to Lt. Constance - and to DA Moore

himself. At 35, Isbell was also the oldest, by a decade, of the Group B defendants.

180. Of course, the outcome for Isbell can be regarded as favorable only if Isbell was

actually involved in the Bowman homicide. Isbell himself has filed a Motion for Appropriate

Relief, contending that the Rutherford admissions, the DNA evidence, including the CODIS

linkage, and the partially restored Kounty Line security video all support his own claim of

innocence.

181. Either way, it is clear that Bacoate steered Isbell toward an inculpatory interview

on September 25, 2000. If Isbell=s accounts of his own involvement in the Bowman matter are

8In May, 2011, Bacoate was still residing at 60 Flint Street, the address of New Life Options, a successor organization to Life on Life’s Terms.

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to be believed - as DA Moore continues to argue - then Isbell received a sentence significantly

lighter than the 9 years imprisonment imposed on Williams, a 16-year-old, who was

characterized as a reticent follower even in the most damning accounts.

182. Much about Isbell and his narrative remains mysterious and tantalizing. One

possibility is that the drug-addled Isbell was employed as a diversion. The shape-shifting

narrative which Isbell provided law enforcement certainly supports that possibility. Isbell has

reported the curious fact that Lacy Pickens was “like a brother to me.”

183. Bacoate’s self-interest in the matter was immediately evident. He collected a

“Crime Stoppers” reward for delivering Isbell to Lt. Constance.

184. Bacoate and Life on Life’s Terms had connections with a number of other

individuals involved the investigation of the Bowman homicide:

a. In early 2001, Derrico Demonté Jordan was facing drug charges in federal court. Asheville attorney, Rick Foster, had been appointed to represent him. At the urging of Matthew Bacoate, Jordan insisted upon cooperating with law enforcement. Foster did not believe that Jordan had any information of value and advised against cooperation. Jordan discharged Foster and hired another Asheville attorney. On February 27, 2001, Jordan summoned detectives to tell them that Jerome Mooney, Larry Williams, and Robert Wilcoxson had admitted involvement to him while they were in the Buncombe County Jail.

b. Robert Wilcoxson’s mother and his girlfriend, Dea Johnson, were interviewed by IIC investigators. They reported that Bacoate arranged a meeting with them. At the meeting, Bacoate insisted that it would be in Wilcoxson’s interest to plead guilty. He asked that they get word to Wilcoxson in jail to put Bacoate’s name on Wilcoxson’s visitors list so that he could meet with him in the jail.

c. In 2001, Gary Williams (no relation to Larry Williams) was serving an active sentence at a North Carolina Department of Corrections prison in Iredell County. Gary Williams had been a participant in Life on Life’s Terms. He contacted Bacoate to report the location of a gun which he claimed had been involved in the

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Bowman homicide. DA Moore dispatched Bacoate and an investigator to Iredell Correctional Center. Gary Williams claimed that he and Aaron Brewton had been involved with the same woman, Nancina Boston. According to Gary Williams, the gun with which Walter Bowman had been shot had ended up hidden behind a couch in Nancina Boston’s apartment. Gary Williams had retrieved the gun. He told Bacoate that the gun was in his mother’s home in Asheville. Bacoate and the DA’s investigator then obtained the shotgun and delivered it to Lt. Constance.

d. On September 21, 2000, Lacy Pickens plead guilty to felony drug charges in Buncombe Superior Court. The plea was entered three days after the Bowman homicide. Pickens had a prior drug felony conviction and several misdemeanor convictions and, yet, he did not receive an active sentence but was placed on intensive probation. One of conditions of his suspended sentence was participation in drug treatment. Asheville Attorney Reed Williams appeared for Pickens. In September 2000, Williams was on the board of directors of Life on Life’s Terms. By 2001, he was chairman of the board. Although he had earlier been involved in criminal defense work, by 2000-0001, Williams’s practice was primarily in the area of Workers Compensation and Social Security Disability. It was unusual for Williams to represent someone in a serious criminal matter.

e. On March 24, 2001, Shaun Lee Bowman plead guilty to Assault with a Deadly Weapon Inflicting Serious Injury and received an active sentence of 30-45 months, a relatively light sentence. Reed Williams appeared for Bowman. That is, within a five-month period, Williams represented both Shaun Bowman and Lacy Pickens, one of the men who had invaded his home and killed Bowman’s father.

185. In August, 2002, Bacoate accompanied Aaron Brewton and his attorney to a

meeting with DA Moore. Bacoate explained that Brewton had grown up without a father figure

– Brewton’s father, Tommy Littlejohn, had been sentenced to federal prison for participating in

a “Continuing Criminal Enterprise” - a cocaine operation - when Brewton was just a child.

Littlejohn and Bacoate had been friends growing up, Bacoate went on to say. All charges

against Brewton were dismissed. A condition of the dismissal was that Brewton enroll in Life on

Life’s Terms.

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186. If one accepts as true the statements of his co-defendants - as the District

Attorney clearly did - the dismissal of Aaron Brewton’s charges is perhaps the most baffling fact

in a case full of inexplicable happenings. At the NIIC hearing for Kenneth Kagonyera before the

three-judge panel, the assistant district attorney representing the State repeatedly cited

Kagonyera’s November 30, 2001, interview with DA Moore himself as evidence which should

bar a determination of innocence. In that statement, Kagonyera named Brewton as the trigger

man. If the statement is as credible as Moore’s assistant insisted, then the prosecution of

Brewton - not the dismissal of his charges - should have a priority of DA Moore. As part of the

plea deal that resulted in dismissal of his murder charge, Brewton agreed to enroll in Life on

Life’s Terms.

187. In the fall of 2008, based upon information provided federal authorities by a

former resident participant of Life on Life’s Terms, a federal grand jury subpoena was served

upon Bacoate, seeking financial records of the program. Bacoate is currently serving an active

sentence in the United States Bureau of Prisons for an income tax evasion conviction related to

the finances of Life on Life’s Terms.

188. One undeniable fact about the Group B hypothesis is that Matthew Bacoate III

was that narrative’s earliest and most persistent sponsor.

1 GROUNDS FOR RELIEF FIRST GROUND FOR RELIEF: ACTUAL INNOCENCE

189. The overwhelming evidence related to the murder of Walter Bowman makes it

clear that Larry Williams did not participate in that crime. He is innocent.

190. The United States Supreme Court has noted that “a truly persuasive

demonstration of ‘actual innocence’” made post-conviction would warrant relief absent an

available state remedy. House v. Bell, 547 U.S. 518, 554 (2005) (quoting Herrera v. Collins, 506

U.S. 390, 417 (1993)). North Carolina has long had the Motion for Appropriate Relief statute,

N.C. Gen. Stat. § 15A-1411 et seq., which recognizes that “factual innocence” is different, and

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that even procedurally barred claims should be heard where “manifest injustice” would

otherwise result. See N.C. Gen. Stat. § 15A-1419. The Courts of this state have noted that the

term "manifest injustice" most often means actual innocence. See State v. Lawrence, 365 N.C.

506, 516 (2012).

191. On September 22, 2011, after a full, adversarial evidentiary hearing before a

panel consisting of three Superior Court judges of the North Carolina Innocence Inquiry

Commission, the Honorable W. Erwin Spainhour, the Honorable Patrice A. Hinnant, and the

Honorable Bradley B. Letts, Kenneth Kagonyera and Robert Wilcoxson were unanimously found

to be innocent of the murder of Walter Bowman. The evidence supporting the panel’s finding

of actual innocence included the following:

a. In March 2003, Robert Rutherford, a federal inmate serving a lengthy sentence for drug offenses, called DEA agent Barney Whiteis and confessed that he had been involved in the Bowman murder, and that his accomplices were Bradford Summey and Lacy “JJ” Pickens. All three were black males, and had been named in the first Crime Stoppers tip received by the BCSO on September 20, 2000.

b. Rutherford provided Agent Whiteis, who knew nothing about the crime, with detailed and accurate information about the murder which only a perpetrator would have known, including the make and model of the car used (a 1970’s blue Oldsmobile Cutlass sedan), the location of a gas station at which the three men had stopped shortly before the murder (the Amoco station near Reynolds High School), the fact that they had waited outside the house in the bushes before the attack, a description of who occupied each bedroom in the house and in which room Walter Bowman was shot, a description of the shotgun used in the attack, and the fact that after leaving the scene Rutherford, Summey and Pickens discarded three bandanas and two pairs of gloves used during the crime. c. Witness statements and physical evidence in the possession of the BCSO corroborated Rutherford’s confession. The initial eyewitness reports had stated that the perpetrators were three black males. The eyewitnesses reported that just before the attack the dogs had been barking at something in the

52

bushes outside the house. Two witnesses at the Amoco station near Reynolds High School had told investigators that three black males pulled into the station around 11:15 pm, shortly before the shooting, in an older model car with a light vinyl top. The video taken from the station showed the three males and the car outside the station, leaving at 11:32 pm, just a few minutes before the murder. The car in the video, a 1971 Oldsmobile Cutlass Supreme with a vinyl top, matched the car that JJ Pickens owned at the time of the murder. The locations of the bedrooms and the room in which Walter Bowman was shot were accurately described. The shotgun used in the murder matched the description given by Rutherford. Three bandanas and two pair of gloves had been found on the side of the road near the scene of the murder.

d. In addition, Rutherford’s confession was corroborated by the fact that DNA extracted by the SBI from the bandanas and gloves found the day after the murder, on the side of a road near the scene of the homicide, matched the DNA of Bradford Summey, one of the two accomplices named by Rutherford. Kagonyera, Wilcoxson and the other people arrested with them were all excluded as the source of that DNA.

e. In 2010 and again in 2013, the NCIIC retained an outside forensic laboratory, LabCorp, to conduct full DNA testing of all six of the original suspects, the three new suspects (Summey, Pickens and Rutherford), and the bandanas and gloves belonging to the perpetrators that were found the day after the murder on the side of the road near the Bowman house. This full DNA testing by an independent laboratory confirmed that:

i. All six of the Group B co-defendants (Isbell, Williams, Mills, Kagonyera, Wilcoxson and Brewton) were all excluded from contributing to the DNA profiles found on the gloves and bandanas.

ii. Lacy “JJ” Pickens’ DNA profile contained a rare allele that was present on two of the gloves.

iii. It was likely that Robert Rutherford’s DNA was in a mixture found on one of the bandanas. More specifically, the odds of someone unrelated to Rutherford having a DNA profile included in that mixture was approximately 1 in 21,030.

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iv. Brad Summey’s DNA exactly matched the DNA found on one of the bandanas.

f. The location of the gloves and bandanas found on the side of the road matched the probable location of Pickens, Summey and Rutherford in Pickens’ car. The two gloves linked to Pickens, who drove the car, were found on the driver’s side of the road. The bandana that matched Summey was found on the passenger side of the road. The bandana linked to Rutherford was also found on the passenger side of the road.

192. Apart from the overwhelming evidence linking Robert Rutherford, Bradford

Summey and Lacy Pickens to the Bowman homicide, the State’s theory of the case cannot

withstand even a cursory examination of the evidence used to compel guilty pleas from Larry

Williams and the other Group B.

193. No reasonable person, much less a reasonable investigator, could consider the

various statements, confessions, and recantations of Isbell, Williams, Mills, Kagonyera and

Wilcoxson to have been truthful and reliable.

194. The post-arrest statements made by Williams, Mills, Kagonyera and Wilcoxson

were both inconsistent with each other and internally inconsistent, especially those made by

Larry Williams and Teddy Isbell.

195. For example, on September 25th, Teddy Isbell told investigators that, at a dice

game. he had overhead Kagonyera admitting he was involved in the Bowman homicide. Later

that day, he stated that he had not been present at the dice game and had heard of

Kagonyera's admission through his girlfriend (who also had a crack cocaine habit). At other

times he stated that he had planned the homicide, but had not been present, then later stated

that he had been present, but had remained in Robert Wilcoxson's van during the invasion.

196. Larry Williams contradictions are even more readily apparent. Williams was

interviewed on no less than eight separate occasions. During those eight interviews, Williams

changed his versions of events numerous times. On two different occasions, Williams stated he

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was involved in the murder. Each time, he recanted the same day. On September 26th he told

investigators that he, Kagonyera, Wilcoxson and Brewton drove Wilcoxson's van to the

Bowman house and that Brewton shot Bowman. Then on October 24th, Williams changed his

story and said that they took Kagonyera's blue Impala, that Teddy Isbell was driving, and that

Kagonyera was the shooter.

197. Not one of these statements and confessions – by Isbell, Williams, or any other

member of Group B – led the police to any evidence corroborating the statement, or provided

the police with a single verifiable fact that the police did not already know about. In fact, Larry

Williams specifically told Murphy that the exact opposite was true – that Sheriff Medford had

provided Williams with non-public details of the crime.

198. In November 2010, the executive director of the NCIIC contacted Professor

Steven Drizin of the Northwestern University School of Law. Professor Drizin, one of the

foremost experts in the country on the subject of police interrogations and false confessions,

was asked to review the statements provided by Isbell, Williams, Mills and Kagonyera from an

impartial perspective. Professor Drizin reviewed these statements along with the DNA test

results, transcripts of the plea hearings, and additional witness statements and police reports.

199. On April 6, 2011, Professor Drizin submitted a lengthy report to the North

Carolina Innocence Commission. He noted that:

The defendants’ confessions, like those of the Central Park Jogger defendants, differ with respect to specific details of virtually every major aspect of the crime – who planned the attack, who carried what weapons, what the perpetrators were wearing, the number and type of cars driven to the crime scene, who entered the home, who was the lookout, who fired the fatal shots, where the defendants went after the attack what was done with the clothing and the guns, etc.

200. Professor Drizin concluded that the statements of Isbell, Williams, Mills and

Kagonyera were “highly unreliable”: “[t]he statements are internally inconsistent, inconsistent

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with one another, and uncorroborated. DNA evidence obtained from items recovered from the

scene excludes all of the defendants.”

201. Professor Drizin also pointed out that there is “evidence of contamination in this

case – the police reports indicate that Larry Williams claimed that Sheriff Medford had given

him details of the crime and Williams testified under oath how the contamination occurred.”

Moreover, “[n]one of the defendants were able to lead the police to any evidence

corroborating their confessions. The defendants did not provide the police with a single

verifiable fact that the police did not already know about.” Any reasonable juror or judge,

knowing these facts, would have concluded, as did Professor Drizin, that the statements were

highly unreliable and likely false.

202. All of the evidence in this case overwhelmingly supports Larry Williams’s claim of

innocence. His actual innocence in this matter entitles him to relief.

SECOND GROUND FOR RELIEF:IMPROPERLY WITHHELD EXCULPATORY EVIDENCE

The DNA Evidence

203. The State has a duty to disclose evidence favorable to an accused. Brady v

Maryland, 373 U.S. 83, 87 (1963); United States v. Agurs, 427 U.S. 97, 107-11 (1976). Even if a

prosecutor does not himself possess Brady material, he has a duty to learn of any favorable

evidence known to other government agents, including the police. Kyles v. Whitley, 514 U.S.

419, 432-33 (1995)( A prosecutor has a “duty to learn of any favorable evidence known to the

others acting on the government’s behalf . . . .”)

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204. The State's duty to disclose material evidence favorable to the defense exists

whether or not the defendant specifically requests the evidence. Brady, 373 U.S. 83, 87 (1963);

United States v. Agurs, 427 U.S. 97, 107-11 (1976); State v. Canady, 355 N.C. 242, 252 (2002).

As stated by the United States Supreme Court, "[a] rule thus declaring ‘prosecutor may hide,

defendant must seek,’ is not tenable in a system constitutionally bound to accord defendants

due process.” Banks v. Dretke, 540 U.S. 668, 696 (2004).

205. The State’s obligation to disclose favorable evidence is limited to evidence that is

material to the defendant’s guilt or punishment. Brady, 373 U.S. at 87. In United States v.

Bagley, 473 U.S. 667 (1985), the Supreme Court held that evidence is material if there if a

reasonable probability that disclosure of the evidence would have changed the outcome of the

proceeding. This standard does not require a showing that, more likely than not, disclosure of

the suppressed evidence would have resulted in an acquittal. Kyles, 514 U.S. at 432. Rather,

when evaluating the materiality of suppressed evidence, the standard is a "reasonable

probability" of a different result. A "reasonable probability" of a different result exists where

"the favorable evidence could reasonably be taken to put the whole case in such a different

light as to undermine confidence in the verdict." Id.

206. Yet the State “cannot be permitted to look at the case pretrial through the end

of the telescope an appellate court would use post-trial. Thus, the government must always

produce any potentially exculpatory or otherwise favorable evidence without regard to how the

withholding of such evidence might be viewed – with the benefit of hindsight – as affecting the

outcome of the trial.” United States v. Safavian, 233 F.R.D. 12, 16 (D.D.C. 2005).

207. The eyewitnesses who were in Walter Bowman’s house when the perpetrators

rushed in had all indicated that the three intruders had worn gloves and bandanas. These

gloves and bandanas had been found on the side of the road, near the Bowman house, the day

after the murder.

208. In October of 2000, with their consent, genetic material was collected from

Isbell, Williams, Mills, Kagonyera, Wilcoxson and Brewton.

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209. On November 2, 2000, Detective Eddie Davis sent the gloves and bandanas,

along with the DNA samples from each member of Group B, to the SBI Laboratory with a

request to “please match through DNA any hair or other bodily fluids found on items 9 – 14 [the

gloves and bandanas] to suspects [DNA samples from defendants].”

210. On March 7, 2001, North Carolina SBI Agent Mark Boodee completed the DNA

analysis and sent the report of the results back to Davis. Although DNA was found on two of

the bandanas used in the murder, Boodee’s testing excluded Isbell and all five of his co-

defendants as the source of the DNA found on the bandanas. The cases against the Group B

defendants were still pending at that time.

211. The NCIIC investigation confirmed that the results of the DNA analysis were also

provided to the District Attorney in March, 2001. The District Attorney now acknowledges that

these results were “in the DA’s file”.

212. Those results were crucial exculpatory evidence. The DNA testing of the

bandanas, which Sprinkle and Murphy believed to have been worn by the perpetrators of the

Bowman home invasion and killing, produced key evidence that neither Williams nor any of the

five other defendants committed this crime, and that someone else was responsible.

213. Deputy Sheriff Davis notified Sprinkle of the DNA results. Despite this, Sprinkle

did nothing to follow up on this evidence of Group B’s innocence. In fact, according to Murphy,

Sprinkle never informed Murphy that Group B were all excluded as contributors to the DNA

found on the bandanas. Had Murphy known this, he told the NCIIC investigator, he would have

been “alarmed” about the case against the charged individuals.

214. Similarly, no one at the Buncombe County District Attorney's Office provided the

DNA results to the Group B defendants or their attorneys. District Attorney Moore has declined

several opportunities to explain, under oath, his failure to disclose the exculpatory DNA results.

He did not testify before the NCIIC nor before the three-judge panel. The forum he has chosen

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to discuss this matter is his 2014 re-election campaign website, where he maintains that the

DNA results were “in the DA’s file”. While that assertion may well be true, it entirely avoids the

issue. DA Moore’s office has long provided “open file discovery” but that term has never meant

that the undigested contents of the DA’s file are available to defense counsel. The prosecution

file was “open” in the sense that DA Moore and his assistants provided copies of the materials

in their files which they chose to copy and provide. Individual prosecutors alone decided what

documents were to be disclosed. Defense counsel had no way of knowing whether the

prosecutors had neglected or chosen not to copy a particular document. If DA Moore or an

assistant district attorney failed to copy a document, defense counsel never saw it. Mr. Moore

has decided not to speak about his “open file policy” in any forum where he could be

questioned about its actual workings.

215. Because the Bowman homicide was considered a capital case, each of the six

defendants were appointed two attorneys. In Teddy Isbell's case, he worked with five attorneys

before he ultimately pled guilty in 2003, though never more than two at any one time.

Therefore no less than twelve of Buncombe County's most reputable and experienced criminal

defense lawyers, and perhaps as many as fifteen, were entitled to the exculpatory DNA report

excluding their clients. However, not one of these lawyers recalls receiving that report, and not

one of their files (of those still existing) contains the document.

216. Attorney Steve Lindsay, who represented Isbell through his first plea, has a vague

memory of receiving in discovery an investigative summary – perhaps authored by Detective

Sprinkle – which made passing mention of "inconclusive" DNA comparison results. The

existence of such a document has not been confirmed. The document is not included in any of

those case files assembled by any of the Group B defense counsel which still exist. Even if such

a report had been provided to Lindsay, Det. Sprinkle’s paraphrasing would hardly serve as a

substitute for the actual results. As a threshold matter, the labeling of the DNA comparison

result as "inconclusive" is inaccurate and misleading. There is nothing "inconclusive" about

total exclusion, and that is a distinction Sprinkle should have grasped.

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217. Nor can it be said that failure to produce the report was an oversight.

Investigators made it a priority to obtain a DNA sample from each member of Group B so that

the profiles obtained could be compared to genetic material on the bandanas and gloves

recovered near the scene of the murder. Even when Aaron Brewton withdrew his consent and

his attorney required Sprinkle to obtain a search warrant, investigators made the effort to

obtain a non-testimonial order for Brewton’s DNA. There is little doubt that had the SBI

returned results confirming the presence of Isbell’s, Williams’s, Mills’s, Kagonyera’s or

Wilcoxson's DNA on those gloves or bandanas the District Attorneys' Office would have

immediately provided that report to defense counsel. The failure to do so – because the results

undercut the State’s theory of the case – is inexcusable, contrary to well established law, and

resulted in the wrongful conviction and imprisonment of Larry Williams and four other innocent

men.

218. The District Attorney's Office's willful violation of law did not stop at failing to

disclose the results. It affirmatively ignored requests for that information and thereby actively

concealed the report.

219. Numerous requests for the results of the 2001 SBI DNA comparison were made

both before and after the Group B defendants entered their pleas, yet on each occasion the

request was ignored or denied.

220. Kenneth Kagonyera alone, without help of his attorneys, requested the DNA

results no fewer than seven times between August 6th of 2001 and February 15, 2008. Those

requests were made directly to the District Attorney, Court Clerk, and Buncombe County

Sheriff's Office, and took the form of written requests, motions to compel, and motions for

appropriate relief.

221. Despite Kagonyera’s peppering of the District Attorney with requests for DNA

results, at no time did the District Attorney's Office decide to simply disclose the report and

provide it to the Group B defendants.

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222. Even the Court's 2008 Order compelling the District Attorney to respond to

Kagonyera’s pro se Motion for Appropriate Relief did not dislodge the exculpatory evidence

from the District Attorneys' Office.

223. Moore’s dismissal of the evidence which he had withheld from the Group B

defendants in 2001 was an entirely irrelevant and evasive response to Judge Payne’s

appropriate and just order. Moore should have provided Kagonyera with the records sought

and let Kagonyera – or his attorney – decide their evidentiary value. Ultimately, eight members

of the IIC and three Superior Court Judges disagreed absolutely with Moore’s evaluation of the

evidence sought by Kagonyera.

224. Further, the CODIS hit undercut all of Moore’s arguments about the reliability of

Rutherford’s confession.

225. Even if DA Moore was so utterly disengaged from the case that he was unaware

of the CODIS linkage, BCSO detectives had before them Rutherford’s story and the CODIS hit

which provided fundamental corroboration for Rutherford’s admissions. The law required

Moore to ask of the BCSO the questions which Kagonyera had asked of him. And which Judge

Payne had ordered him to answer.

226. Perhaps the most compelling reason for seriously investigating Robert

Rutherford’s account had been provided by Moore himself at the sentencing of Williams,

Kagonyera, Wilcoxson and Mills, seven years earlier:

The State believes – and again, one thing I would tell the Court, there have been various statements made by various defendants at different times, and witnesses, so it’s hard to figure out exactly who did what where, but the State believes that the folks went out there with the intention of robbing Sean Bowman.

227. Tragically, at some point in the investigation and prosecution of the Bowman

shooting, propping up a jerry-built theory took precedence over a determination of “who did

what where”.

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The Rutherford Confession and the CODIS Hit

228. Both the Rutherford Confession and the CODIS linkage of Brad Summey’s DNA

profile to the genetic material extracted from the gray bandana are clearly exculpatory and

material. Less clear, however, is the question of what Brady disclosure obligation remains post-

conviction.

229. In District Attorney’s Office for the Third Judicial Dist. V. Osborne1, the United

States Supreme Court held that “[a] criminal defendant proved guilty after a fair trial does not

have the same liberty interests as a free man”. Osborne, however, sought potentially

exculpatory DNA evidence. The testing methodology sought by Osborne had not been

developed at the time of his trial, which the Court deemed fair in every respect. Given the DNA

comparison evidence which existed at the time of his plea and which was not disclosed to

Williams, the proceedings against him were not fair. Further, the evidence acquired by the

District Attorney post-conviction was actually rather than potentially exculpatory.

230. In any event, Rule 3.8, Rules of Professional Conduct, North Carolina State Bar

provides:

The prosecutor in a criminal case shall:

. . . . (d) after reasonably diligent inquiry, make timely disclosure to the defense of all evidence or information required to be disclosed by applicable law, rules of procedure, or court opinions including all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigate the offense. . . .

231. Under the North Carolina rule, the prosecutor’s obligation to disclose “all

evidence or information known to the prosecutor that tends to negate the guilt of the accused”

continues after conviction.

THIRD GROUND FOR RELIEF:NEWLY DISCOVERED EXCULPATORY EVIDENCE

11557 U.S. 52, 129 S. Ct. 2308, 174 L. Ed. 2d 38 (2009).

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232. A motion for appropriate relief is proper and may be raised at any time after

verdict when "evidence is available which was unknown or unavailable to the defendant at the

time of trial, which could not with due diligence have been discovered or made available at that

time…" N.C. Gen. Stat. § 15A-1415(c); see also State v. Williamson, 2006 N.C. App. LEXIS 248,

*9 (Feb. 7, 2006)(unpublished opinion)("Motions for appropriate relief generally allow

defendants to raise arguments that could not have been raised in an original appeal, such as

claims based on newly discovered evidence and claims based on rights arising by reason of later

constitutional decisions announcing new principles or changes in the law.")

233. A new trial is warranted based on newly discovered evidence when: (1) the

witness or witnesses will give newly discovered evidence; (2) the newly discovered evidence is

probably true; (3) the evidence is material, competent, and relevant; (4) due diligence was used

and proper means were employed to procure the testimony at trial; (5) the newly discovered

evidence is not merely cumulative; (6) it does not tend only to contradict a former witness or to

impeach or discredit him; and (7) the evidence is of such a nature as to show that in another

trial, a different result will probably be reached and that the right will prevail. State v. Britt,

320 N.C. 705, 712-13 (1987); State v. Nickerson, 320 N.C. 603, 609-10 (1987); State v. Beaver,

291 N.C. 137, 183 (1976).

The 2001 SBI Laboratory DNA Results

234. On November 2, 2000, Detective Eddie Davis sent the gloves and bandanas

recovered from the ditch beside the Bowman residence, along with DNA samples from each

member of Group B, to the SBI Laboratory with a request to compare the genetic material

recovered from the physical evidence to the DNA provided by Group B.

235. On March 7, 2001, SBI Lab Analyst Mark Boodee completed his report stating

that each member of Group B was excluded as being a possible contributor to the genetic

material recovered from the gloves and bandanas. Boodee sent this report to the District

Attorney's Office and to Detective Davis at the BCSO on that date.

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236. Those lab results are newly discovered evidence. The record is clear that Larry

Williams’s attorneys were not provided with the results prior to his guilty plea on February 25,

2002.

237. Evidence of those results is “probably true” in the sense that their accuracy is not

in dispute.

238. At one time or another, each of the Group B defendants, except Robert

Wilcoxson, made statements which incriminated that defendant and his co-defendants. The

State made its case against the Group B defendants by weaving together the strands which

inculpated those defendants. Eye witnesses testified that the three home invaders wore

bandanas and that two of the three wore gloves. Bandanas and gloves were found beside the

likely getaway route. Amylase is an enzyme present in the saliva of humans. The SBI laboratory

identified amylase in the bandanas and were able to recover DNA material from that amylase.

Similarly, DNA material was recovered from one of the gloves. The DNA comparison evidence is

undeniably competent and relevant. The State could argue the materiality of comparison

evidence which excluded only Williams: 1. The State contends that six individuals, not three,

were involved; 2. Under the State’s theory, three of the six co-defendants would not have been

wearing bandanas and four would not have been wearing gloves; Therefore, 3. Williams could

have participated in a way which left no DNA material on either a bandana or a glove. Evidence

that the DNA comparison results excluded not just Larry Williams but each of his five co-

defendants as a contributor to the genetic material can only be material. DA Moore’s theory of

the case is dismantled entirely by evidence which removes all of the protagonists in the State’s

narrative.

239. Williams’s trial counsel exercised due diligence. Testimony before the IIC

established the practice of DA Moore’s office regarding discovery: “open file” discovery was

available in every case unless otherwise specified. The “open file policy” did not mean,

however, that defense counsel were given access to the DA’s actual file. Under the policy, as

the particular prosecutor assigned to a case received documents from the investigating officers

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or from a laboratory, that prosecutor copied those documents, placed them in an envelope

addressed to the defense firm involved and left them on a designated shelf in the reception

area of the DA’s Office. Typically, in a capital or other high-profile case, significant documents –

e.g. laboratory reports – were mailed directly to defense counsel. Scientific test results which

supported the State’s theory of the case would often be mailed with an accompanying letter

containing commentary and a deadline for accepting a proposed guilty plea.2

240. Defense counsel were entitled to rely upon the practice and upon the State’s

representations about its “open file policy”. The efforts of defense counsel – and, indeed, of

the defendants themselves – went further, however. Counsel for Kenneth Kagonyera filed a

Brady motion and Kagonyera himself filed a written pro se request for DNA comparison results

prior to the entry of guilty pleas from any of the Group B defendants3.

241. DNA comparison evidence excluding all six Group B co-defendants as

contributors is anything but cumulative.

242. While the DNA comparison results certainly do contradict all of the State’s

central witnesses, those results go well beyond mere impeachment evidence.

243. The evidence that none of the Group B defendants were the source of the saliva

found on the bandanas or the genetic material found on the recovered glove was introduced at

the IIC commission hearing and, again, at the hearing before the three-judge panel with the

result that eight IIC commissioners and three Superior Court judges voted unanimously for a

determination of innocence. In another trial for Larry Williams, the introduction of this

evidence is likely to result in a different outcome – an outcome in which the right prevails.

22Had the SBI testing found DNA material from any of the Group B defendants on the bandanas or gloves, the lab reports would have been communicated immediately to defense counsel.

33Sean Devereux, trial counsel for Kenneth Kagonyera filed a Brady motion on December 7, 2000. Mr. Devereux’s practice was to file such motions in every case. On one occasion, DA Moore upbraided Mr. Devereux for doing so, telling him that, in view of Moore’s “open file policy”, Brady and discovery motions were unnecessary and burdensome on the State. Mr. Moore suggested that, in the future, his office might not extend “open file” discovery in cases wherein Mr. Devereux filed Brady/discovery motions. Mr. Devereux continued to file the motions.

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The 2003 Robert Rutherford Confession

244. Robert Rutherford’s 2003 admissions to DEA SA Whiteis are newly discovered

evidence.

245. For the reasons set forth supra – the detail and consistency of that detail with

the known facts of the Bowman homicide – Rutherford’s confession is probably true. The

CODIS linkage of Brad Summey to the bandana corroborate Rutherford’s account almost to the

point of certainty.

246. No amount of diligence on the part of Williams’s trial counsel could have secured

Rutherford’s statements. Rutherford did not make his confession to SA Whiteis until March,

2003 – after all Group B defendants, except Isbell, had been sentenced – and he made it in the

hope of obtaining a reduction of his federal prison sentence, a hope which Williams’s defense

counsel could not have held out to Rutherford.

247. Rutherford’s statements are hardly cumulative. The possibility that Rutherford

was involved in the shooting of Walter Bowman was dismissed out of hand by the BCSO and the

District Attorney. The only substantive evidence of Rutherford’s involvement was developed by

the NCIIC investigators and by counsel for Wilcoxson and Kagonyera in the IIC proceedings.

248. While Rutherford’s admission do contradict, impeach and discredit former

witnesses, his account goes far beyond mere contradiction, impeachment or discredit.

249. As the outcome of the Wilcoxson and Kagonyera NCIIC claims demonstrates, the

Rutherford admissions – by itself and in connection to the DNA comparison evidence – is likely

to bring about a different and just result.

The 2007 CODIS DNA Match

250. On March 28, 2007, the SBI received a notice that the national CODIS DNA

database had matched the saliva found on the grey bandana from the Walter Bowman

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homicide to the DNA of Bradford Summey. This match was then confirmed by the SBI.

251. This evidence is “newly discovered”’; that is, the 2007 CODIS hit was not known

and could not have been discovered prior to entry of Williams’s guilty plea in this matter.

252. There is a overwhelming probability that the evidence is true. The odds that

someone other than Summey was the contributor of the DNA in the bandana were calculated

by the SBI as more than one in one trillion. In short, the DNA match established that Bradford

Summey had worn over his face the bandana that was used in the Bowman homicide.

253. The materiality, competence and relevance of the evidence are readily apparent.

This evidence corroborates the confession made by Robert Rutherford to DEA Agent Whiteis in

2003 – itself newly discovered evidence – and is substantive evidence of Williams’s innocence.

254. No amount of diligence could have procured evidence of the CODIS linkage that

was not known to the SBI until 2007.

255. The evidence that Brad Summey’s saliva was on a bandana worn during the

home invasion goes far beyond mere impeachment evidence. As noted, the positive CODIS

comparison is direct evidence that someone other than Williams or any of the Group B

individuals broke into the Bowman home. The comparison also corroborates Rutherford’s

inculpatory statement.

256. When the CODIS evidence was introduced into the Kagonyera/Wilcoxson NCIIC

proceedings, a different result was reached and the right did prevail.

The 2010 and 2013 LabCorp DNA Results

257. In 2010, and again in 2013, the NCIIC retained LabCorp to perform independent

tests on the bandanas and gloves recovered from the Bowman homicide. These tests included

utilization of new extraction techniques that resulted in additional genetic material being

recovered, and a comparison of that material to each member of Group B (Isbell, Mills,

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Williams, Kagonyera, Wilcoxson and Brewton), each member of Group A (Rutherford, Summey

and Pickens) as well as Walter Bowman.

258. The results of the tests showed that all six of the Group B co-defendants were

excluded from contributing to the DNA profiles found on the gloves and bandanas; that Lacy

Pickens’ DNA profile contained a rare allele that was present on two of the gloves, and that it

was extremely likely that Robert Rutherford’s DNA was in a mixture found on one of the

bandanas.

259. The 2010 and 2013 LabCorp DNA testing results are exculpatory evidence

supporting Williams’s claim of innocence.

260. The 2010 and 2013 LabCorp DNA testing results were not known and were not

discovered prior to entry of Williams’s guilty plea in this matter.

261. In sum, the 2007 CODIS hit, the 2001 SBI DNA results, and the LabCorp DNA

results are all newly discovered evidence that satisfy the requirements for setting aside Larry

Williams’s conviction for second degree murder.

The Enhanced Footage from the Kounty Line Amoco Security Camera

262. Investigators for the NCIIC were able to obtain enhanced images from the

videotape recorded on the night of September 18, 2000 by a security camera at the Kounty Line

Amoco. At the 2011 NCIIC hearing for Kagonyera and Wilcoxson, John Flory, an expert in

American classic automobiles, identified the vehicle in the video tape conclusively as a 1971 or

1972 Oldsmobile Cutlass Supreme. State v. Wilcoxson NCIIC Evid. Hearing Tr. vol. II, 268:19-22,

Sept. 13, 2011.

263. North Carolina Department of Motor Vehicles records establish that Lacy “JJ”

Pickens - one of the three men named in the first Crime Stoppers tip, who could not be

excluded as a contributor of the DNA containing a rare allele found near the scene of the

Bowman murder, and who was implicated in the confession given by Robert Rutherford to a

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DEA agent – was the registered owner of a 1971 Oldsmobile Cutlass Supreme on September

18, 2000.

264. The enhanced video images were not available to Larry Williams’s attorneys in

2000-2001.

265. Even if defense counsel were able to view the videotape in 2000-2001 before it

was taped over by a soap opera episode, its significance would not have been apparent. The

image of the Cutlass Supreme and its three young, black occupants became significant only in

light of Rutherford’s description of his interlude at the Kounty Line Amoco with Summey and

Pickens minutes before the shooting of Walter Bowman.

266. The image is corroborative as opposed to cumulative. And it is substantive,

rather than merely impeaching, evidence.

267. The image, considered by a jury in the context of the now-known DNA

comparisons evidence – including the CODIS link to Summey – and the Rutherford confession

would almost certainly bring about a different result in this matter.

NOTICE TO COURT OF INTENT TO AMEND

Despite best efforts of the undersigned counsel, there remains information and

evidence that counsel in good faith believe to exist and which would be relevant to the claims

raised herein. Counsel, therefore, respectfully reserve the right to supplement and amend this

Motion for Appropriate Relief as and to the extent that additional evidence and information

supports new or modified claims.

PRAYER FOR RELIEF

WHEREFORE, the Defendant respectfully moves that this Court:

1. On the evidence presented in this Motion, enter an order vacating the Trial Court’s judgment against Defendant and either dismiss the charges against him or allow him a new trial;

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2. Should the court require additional evidence to grant relief,

a. Enter an order requiring the State to answer the allegations in this Motion;

b. Enter an order incorporating the evidence adduced at all related proceedings of the North Carolina Innocence Inquiry Commission and the Three-Judge Panel thereof;

c. Provide the Defendant, who is indigent, sufficient funds to secure counsel and

expert testimony, where necessary, to prove the facts as alleged in this Motion;d. Calendar a hearing on Defendant’s Motion for Disclosure of Exculpatory

Material; and

e. Enter an order granting an evidentiary hearing at which Defendant may offer proof concerning the allegations of this Motion.

3. Following the evidentiary hearing, permit a reasonable period of time for the submission of memoranda of law on Defendant’s constitutional and statutory claims;

4. Following the evidentiary hearing and the review of any memoranda of law, enter an order vacating the conviction herein and granting the Defendant a dismissal of or a new trial on all charges; and

5. Grant such other and further relief as the Court deems just and proper.

Respectfully submitted this ____ day of April, 2014.

CLONINGER, BARBOUR, SEARSON & JONES, PLLCAttorneys for Larry Jerome Williams, Jr.

______________________________________By: W. Bradford SearsonN.C. State Bar No. 1874921 Battery Park Avenue, Suite 201Asheville, North Carolina 28801Phone: 828.252.5555Fax: 828.232.9158

CERTIFICATE OF SERVICE AND COMPLIANCE WITH

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N.C. Gen. Stat. § 15A-1420(a)(1)(c1)

I hereby certify that a copy of the foregoing Motion for Appropriate Relief was served on the following by depositing a copy in the United States Postal Service in a properly addressed envelope with adequate postage thereon, or by leaving same at the office below:

Ronald MooreDistrict Attorney28th Judicial District Buncombe County Courthouse60 Court PlazaAsheville, North Carolina 28801

I further certify that, pursuant to N.C. Gen. Stat. § 15A-1420(a)(1)(c1), that, in my professional judgment as a post-conviction attorney, there is sound legal basis for this motion, that this motion is made in good faith, that I have reviewed the trial transcript in the case, and that I have given notice of this motion to the District Attorney’s Office, through prior correspondence, via hand delivery, and service of the motion, as indicated above, and to Mr. Williams’s surviving trial counsel, Leah Broker, by letter sent via regular mail to her office at 56 College Street, Suite 201, Asheville, NC, 28801.

This ____ day of April, 2014.

CLONINGER, BARBOUR, SEARSON & JONES, PLLCAttorneys for Larry Jerome Williams, Jr.

______________________________________By: W. Bradford SearsonN.C. State Bar No. 1874921 Battery Park Avenue, Suite 201Asheville, North Carolina 28801Phone: 828.252.5555Fax: 828.232.9158

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