In this case, defendant Michelle Theer
(hereinafter "Michelle") has been wrongfully convicted of murder and
conspiracy to murder her husband Marty Theer (hereinafter "Marty"). On
December 17, 2000, Marty died from multiple gunshot wounds. At trial,
the State did not claim Michelle herself shot Marty or personally
committed any act of murder. Instead, the State asserted Michelle was
guilty of murder solely as an accessory before the fact to John Diamond.
However, there was no direct, medical, forensic, physical, eyewitness,
confession, or sufficient circumstantial evidence Michelle was guilty of
murder or conspiracy as an accomplice or in any other way. As shown
below, Michelle is entitled to relief on appeal because there was
insufficient evidence and her trial was infected by character
assassination and prejudicial error.
Marty and Michelle were high school
sweethearts in Denver, Colorado in the 1980s. (Tp. 1269) In 1987,
Marty graduated from high school and enrolled in the Air Force Academy.
(Tp. 1270) In 1988, Michelle graduated from high school, joined the Air
Force Reserves, and enrolled in the University of North Colorado. (Tp.
5413) Subsequently, Michelle volunteered for military service overseas,
served for 12 months in Operations Desert Shield and Desert Storm, and
won the Air Force Achievement Medal for Meritorious Service.(Tpp.
5414-16) In May 1991, Marty graduated from the Air Force Academy and
married Michelle. (Tp. 1270) Subsequently, Marty was stationed on Air
Force duty in Oklahoma, Denver, and Colorado Springs; Michelle
accompanied Marty to each station, worked to support her husband, and
finished college. (Tp. 5419) In 1995, Marty learned he was going to be
transferred from Colorado to Patrick Air Force Base in Florida and
Michelle successfully applied to a 4-year graduate school program in
psychology at Florida Institute of Technology. (Tp. 1558) In the fall of
1995, Marty and Michelle moved to Melbourne, Florida; Marty was an Air
Force pilot and Michelle went to graduate school. (Tp. 1561) During most
of the next 3 years, Marty was deployed away from Michelle and Florida
on Air Force duty in Saudi Arabia, Kuwait, and Georgia. (Tpp. 4475,
4506, 5277-78, 5435) Marty's frequent absences caused marital problems
and the Theers' sought marital counseling in May 1997. (Tpp. 5276-78)
During these years, Michelle volunteered at a rape crisis hot line,
counseled combat veterans and sexually abused children, and had "very
good skills working with children." (Tpp. 3671, 5215, 5435)
In early 1999, Marty was transferred to Pope
Air Force Base in Fayetteville. (Tp. 4476) Shortly thereafter,
Fayetteville psychologist Tom Harbin agreed to hire Michelle as an
associate starting in September 1999. (Tp. 1034) Harbin's office space
was located in Fayetteville at 2500 Raeford Road on the second floor of
a 2-story professional building with a paved parking lot in the rear and
an outside staircase and landing leading from the rear parking lot to a
back door to the building's second floor. (Tp. 852)
In September 1999, Michelle graduated with
honors from her doctorate program and moved from Florida to Fayetteville
to join Marty and start her new job. (Tp. 1468) However, in most of 1999
and 2000, Marty was deployed away from Michelle and Fayetteville on Air
Force duty overseas and in Arkansas as a search-and-rescue pilot. (Tpp.
1329, 1477, 1513, 1938, 5804) Michelle practiced psychology at Harbin
and Associates and also taught psychology at Campbell and Webster
Universities. (Tp.1035) Marty's absences exacerbated previous marital
problems. (Tpp. 1329, 1938)
In March 2000, Michelle met and became
involved in a sexual relationship with a man named John Diamond, a
confident sniper-trained sergeant in the U.S. Army. (Tpp. 1328, 1536-37)
In June 2000, Marty and Michelle ran a marathon in Alaska together and
raised $5000 for charity. (Tp. 5440) In July 2002, Marty and Michelle
went to marital counseling and had a trial separation. (Tp. 1052) In the
fall of 2000, Michelle tried to end her affair with Diamond, reconciled
with Marty, and resumed living with Marty in their home. (Tpp. 1151,
1164, 1331, 2497-99)
In November 2000, Diamond became emotionally
upset because Michelle was rejecting him and getting back together with
Marty, said he was "losing control," and obtained a handgun. (Tpp. 1153,
1359, 1694, 1943, 2494-96, 2500)
In mid-December 2000, Harbin decided to take
Michelle, Marty, and 2 other people to a Cary restaurant for an office
holiday dinner on Sunday night, December 17. (Tp. 1076) At about 5:00
p.m. on December 17, the Theers met the 2 people at the 2500 Raeford
Road office, went together in the Theers' Ford Explorer to Cary, met
Harbin, and started eating dinner at the restaurant at 7:30 p.m. (Tp.
1084) Michelle sat next to Marty during dinner, "seemed to be getting
along and having fun," and did not seem to be in a hurry. (Tpp.
1086-87, 1158, 1260) The Theers and the 2 others then left the
restaurant, drove back to Fayetteville, arrived back at the office at
about 10:30 p.m., and drove off in their respective vehicles. (Tp. 1092)
It was very cold. (Tp. 1227) The Theers stopped at a nearby gas station
on the way home to get gas at about 10:42 p.m. (Tp. 1869) At that point,
Michelle remembered she needed some reference books from her office to
prepare some reports. (Tp. 1890) The Theers drove back to Michelle's
office and parked the Ford Explorer in the rear parking lot. (Tp. 1890)
Michelle walked up the outside rear staircase, entered the building
through the back door, and started looking for her books while Marty
waited in the car. (Tp. 1890) Less than 4 minutes later while Michelle
was still inside the building, Michelle heard gunshots, dropped her
books and keys, ran out the rear door and down the stairs, discovered
Marty lying unresponsive on the pavement at the bottom of the stairs,
could not get back inside the building because the door had closed and
locked behind her, and ran to a nearby late-night video rental store for
help. (Tpp. 938, 1890-91, 1899, 5321)
Video store clerk Joyce Smith testified
Michelle ran into her store sometime after 10:45 p.m., was hysterical,
in shock, and out of breath with blood on her hands and face, shouted
"call 911, somebody shot my husband," and told a 911 operator to send an
ambulance to 2500 Raeford Road. (Tpp. 66-73, 85, 88) The 911 call
was actually made at 11:01 p.m. (Tp. 150) Michelle then went back
to the 2500 Raeford Road scene. (Tp.1891) Civilian Lewis
Nance was the first person to arrive at the scene; he testified
Marty's dead body was lying in the rear parking lot near the bottom of
the outside staircase and Michelle was crying, shaking, weeping,
sobbing, not wearing a jacket or shoes despite the bitter cold, and
kneeling over, holding, and talking to Marty's body. (Tpp. 169-78)
Fayetteville police and fire officers testified that Michelle was
crying, sobbing, hysterical, and kneeling over, talking to, and holding
Marty's body when they arrived at the scene at and after 11:08 p.m.;
that they pulled Michelle away from Marty and asked what happened; and
that Michelle said she went inside her office to get some reference
books, heard gunshots, went outside, saw Marty lying on the pavement,
might have seen someone running away from the building through some
bushes, could not get back inside her office to call for help, and went
for help. (Tpp. 239-52, 292-304, 331-32, 1890-91) Subsequently, Michelle
continued to cry and shake, repeatedly asked medics about Marty, and
"went completely still and unresponsive." (Tpp. 781-82, 1885) Evidence
showed Marty sustained 5 fatal gunshot wounds to the body. (Tp. 694)
Fayetteville police officers searched the scene and seized a surgical
glove, an ink pen, several recently-smoked cigarette butts, an empty
cigarette pack, two fired 9 millimeter cartridge cases near Marty's
body, some books and keys on top of Michelle's office desk, Michelle's
clothes, and a woman's purse inside the Ford Explorer. (Tpp. 635-36,
881-83, 999, 1022-23, 1374, 1872, 1877) Officers also performed a
gunshot residue test on Michelle's hands, found Michelle's shoes on the
route from the scene to the video store, believed the hood of the Theers'
Ford Explorer contained evidence of a struggle, and found several bullet
holes on the exterior wall near the rear back door. (Tpp. 759-80,
837-41, 920-28, 941, 1004, 5326) Police did not canvas area
neighborhoods, test the cartridge cases, ink pen, staircase railing, or
exterior door for fingerprints, test the cigarette butts for
fingerprints, saliva, or DNA, test blood samples for DNA or regeant
factors, or have an expert examine blood at the scene. (Tpp. 1003-04,
1374-75, 1381, 2042-45, 2058) Firemen hosed the scene down with
water before dawn on December 18. (Tp. 256) SBI agents testified
Michelle's clothes did not contain any blood spatter and Michelle's
gunshot residue test was not indicative of Michelle having fired a
handgun. (Tpp. 800-05, 818) In the hours, days, and months after Marty's
death, Michelle acted like a "distraught" and devastated" widow and gave
voluntary statements to police acknowledging her sexual relationship
with Diamond and phone call to Diamond on December 17. (Tpp. 1096,
1327-39, 1919-22, 1938-44, 5109, 5293) Michelle had no prior
criminal record and repeatedly denied she had anything to do with
killing Marty. (Tpp. 1114, 3857, 4119)
