AFFIDAVIT OF COUNSEL

STATE OF NORTH CAROLINA             IN THE GENERAL COURT OF JUSTICE

COUNTY OF ______________         SUPERIOR COURT DIVISION

                                                        FILE NO

__________________________

                                                           

STATE OF NORTH CAROLINA   

                                                           

                        VS                                                      AFFIDAVIT of COUNSEL

                                                           

_______________________,      

Defendant,

            NOW COMES _________, Attorney for the Defendant and being first duly sworn, deposes and says, on information and belief:

  1. Defendant is presently accused in bills of indictment with: one count of First Degree Murder, seven counts of 2nd Degree Kidnapping, Robbery With a Dangerous Weapon, Conspiracy to Commit Robbery With a Dangerous Weapon, and two counts of Assault With a Deadly Weapon With Intent to Kill.
  2. The date of the alleged offenses is ___________.  These crimes are alleged to have occurred at ______________________.
  3. Defendant was indicted by the Grand Jury of this county on ___________.
  4. ____________ is the named victim in the First Degree Murder warrant in ________ County Case.
  5. Defendant was arrested on __________, and has been in continuous State custody since then.
  6. No bond has been set in Defendant’s murder case.
  7. Defendant waived a probable cause hearing on all charges in writing __________.  This waiver was served on Mr. L. Johnson Britt, elected District Attorney personally on ________________.
  8. _________ and five other persons are accused in this case.  The other five co-defendants are:____________________.
  9. The alleged “shooter” in this case is ________________.  He was indicted for murder and other charges on or about _____________.
  10. Undersigned counsel has reviewed discovery pertaining to this matter and provided by the State in great detail.
  11. The State possesses no evidence that Defendant was personally present at the scene of the crime when ________ was killed on ____________________.
  12. The State possess no evidence that Defendant counseled, procured or agreed with anyone including any of the co-defendants, to kill ___________.
  13. ___________ has made statements to law enforcement officers that someone named “Tony” provided him with a firearm.  “Tony” and others instructed _________ to rob the occupants of a house situated on ____________ Rd area near Pembroke.
  14. During this robbery, __________ shot and killed ____________.
  15. Law enforcement officers believe “Tony” to be Defendant.

16. One of the co-defendants was arrested and charged with these crimes on or about January 4, 2008.

17. One of the co-defendant’s was interviewed by a law enforcement officer or officers on ____________ and again on ______________.

18. In summary form, the co-defendant told a law enforcement officer or officers that Defendant counseled and procured her to commit a robbery of the occupants of _________ Rd on _____________.

19. She was told drugs and money were in the house.  She told an interviewing officer during her de-briefings that __________ shot and killed the alleged victim in the murder case.

20. Defendant’s homicide charge was been placed on the ___________________ County “Murder Calendar.”

21. On _______________, , the Defendant filed a motion for a speedy trial.

22. This case was set for trial in open court at _________ County’s “Murder Calendar,” before the Hon. R. Frank Floyd, Senior Resident Superior Court Judge.  This occurred on ___________________.

23. The trial date chosen was ____________________.

24. This matter was declared a “capital case” on ________________, at a Rule 24 hearing.

25. This case has been deemed the “priority case” for trial on ________________.

26. Based on this trial setting, undersigned counsel withdrew from the appellate case of State v. Don Sauer, Dare Co. cases 09 CRS 1258 and 50824.  Mr. Sauer was convicted of attempted First Degree Murder and Assault With a Deadly Weapon With Intent to Kill Inflicting Serious Injury.

27. Counsel realized he could not both defend the Defendant at a capital trial, and represent Mr. Sauer on appeal.

28. Co-counsel for the defendant is Mr. D.W. Bray of the Cumberland County Bar.

29. Based on the __________________ trial setting in the defendant’s case, Mr. Bray scheduled two capital cases in Cumberland County.  One capital trial is set for _________________ and the second capital case is set for _________________.

30. Mr. Bray finished a two-week non-capital First Degree Murder trial in Cumberland County within the last two weeks.

31. As of the date of this affidavit, 980 days (2 years, 8 months, 6 days) have passed since the date of the his arrest.

32. As of the date of this affidavit, the case is in a state of “legal limbo.” This state of affairs is intolerable to the defendant.

This the ______ day of ___________ 20_____.

FURTHER AFFIANT SAYETH NAUGHT.

____________________________

Attorney for Defendant

Sworn and subscribed before me

this the ____ day of _______________, 20____

______________________________________

                        Notary Public

My commission expires: __________________