Petition for Writ of Certiorari — Robert H. Smith, Petitioner v. Indiana

No.

c=j

•a

]

i

IN THE

SUPREME COURT OF THE UNITED STATES

'

ROBERT H. SMITH - PETITIONER,

VS.

PILED—

AU6 62 2019

STATE OF INDIANA - RESPONDENT

ON A PETITION FOR A WRIT OF CERTIORARI TO:

THE INDIANA SUPREME COURT / COURT OF APPEALS

CASE NO: 85A05-1712-CR-2908

DECIDED: MAY 14, 2019

PETITION FOR WRIT OF CERTIORARI

/7ujberi-

^

ROBERT H. SMITH #185788/EE-45

C/O One Park Row

Michigan City, Indiana [46360]

Petitioner ‘Pro Se’.

Done un leiRiiiQ&yiE D

NOV - 5 2019

lluPREEM°EFrT0^D^RK

Received

AUG 15 2019

/

1

QUESTION(S) PRESENTED (Supreme Court Rule lOetseq.)

1)

Whether or not the Indiana Supreme Court/Court of Appeals has entered a

decision in conflict with other decision(s) previously made in the United States

Supreme Court on important matter regarding violation(s) of the 4th, 5th, 6th and

14th amendment(s) of the United States Constitution [and] has decided an

important federal question in a way that conflicts with a decision by a State Court

of last resort (i.e. the Indiana State Supreme Court) and has so far departed from

the accepted and usual course of judicial proceedings and has sanctioned such a

departure by the lower court(s) in this matter in a way that conflicts with relevant

decisions of this United States Supreme Court as to call for an exercise of this

Court’s supervisory power and Judicial Review.

2)

Whether or not the Petitioner was seized illegally and held in violation of the

4th amendment to the United States Constitution and the denial of a fair and

impartial trial by jury in violation of the 5th, 6th and 14th amendment(s) to the

United States Constitution, by the admission of evidence that should have been

subject to the ‘exclusionary rule’ in relation to claim(s) made in any and all the

following Cause Number(s);

STATE OF INDIANA (Plaintiff) v. ROBERT H. SMITH (Defendant)

Wabash County, Indiana Trial Cause: 85C01-1608-F4-925! and

ROBERT H. SMITH (Appellant-Petitioner) v. STATE OF INDIANA (AppelleeRespondent) Indiana Court of Appeals/Supreme Court; 85A05-1712-CR-2908;

(Specifically that the Petitioner Robert H. Smith on direct review suffered undue

and unfair prejudice when appellate counsel failed to raise the issue(s) and to

actively challenge the admission of evidence that should have been subject to the

exclusionary rule’, due to the ineffective assistance of any and all counsel(s)

conducting the Petitioner Robert H. Smith’s trial and direct appeal, in violation of

the 5th, 6th and 14th amendment(s) to the United States Constitution. (See)

Strickland v. Washington, 466 US 668, 104 S.Ct. 2052 (1984).

3)

Whether or not the Petitioner Robert H. Smith was unduly prejudiced when

the Wabash County Circuit Court #1 by the improper admission of extrinsic

evidence relating to prior bad acts, as well as his trial counsel’s failure(s) to compel

a complaining adverse witness (Name- Amanda Snow) for the purposes of to have

the ability to impeach an adverse witness’s prior inconsistent statement(s) under

Indiana Rule of Evidence 613. That the trial court erroneously allowed a witness

named John Gillam to supplant testimony for a complaining witness (Name:

Amanda Snow) in violation of the ‘Hearsay Rule’. (See) Indiana Rule of Evidence

801 et seq.

4)

That although “[sltate courts are the principal forum for asserting

constitutional challenges to state convictions.” (Referencing) Harrington v. Richter,

562 US 86 @ 103 (2011). That [it is] no longer to be true in relation to the State of

Indiana for at least some ‘Strickland’ claim(s). (Referencing) Strickland v.

Washington, 466 US 668, 104 S.Ct. 2052 (1984)

and the recent ruling made in

Brown v. Brown, 847 F.3d 502 (7th Cir. 2017) 1 , the ruling incorporates a dissenting

opinion by the United States Court of Appeals 7th Circuit Judge Diane Sykes

1 Application was made for Certiorari under No: S.Ct 17-887 and denied subsequently by

(S.C.O.T.U.S.) April 16, 2018.

A

stating; that it [shall make] the federal courts, [and] not state courts the primary

forum for more constitutional challenges to state convictions, and that if the state

court(s) deny [a] petitioner’s application for review (done in good faith) then the

federal venue shall be appropriate for the attainment of any and all remedy to

United States constitutional violations, based on the equitable doctrine of ‘Stare

Decisis’.

5)

That any and all trial and/or appellate counsel(s) failure(s) to preserve

legitimate Tree-standing’ claim(s) during trial and direct review should not be

attributable to the Petitioner ROBERT H. SMITH where it shows a clear

constitutional error ‘prima facie’. (Reference) Coleman v. Thompson, 501 US 722 @

750 (1991); invoking the rule regarding [a] ‘narrow exceptioii that the; “[d]octrine

barring procedurally defaulted claims from being heard is not without exceptions. A

prisoner may obtain federal review of a defaulted claim by showing cause for the

default and prejudice from a violation of federal law.” That the Petitioner ROBERT

H. SMITH was defaulted through no fault of his own when his trial counsel

(Kristina Lynn) failed to subpoena the complaining Witness (Name: Amanda Snow)

*

and denied the Petitioner the right to confront any and all adverse witnesses

against him in violation of the 5th, 6th and 14th amendment(s) to the United States

Constitution, and thereby prejudicing the Petitioner and denying him a fair and

impartial trial by jury.

H

LIST OF PARTIES

(i)

ROBERT H. SMITH - Defendant/Appellant-Petitioner;

(ii)

THE STATE OF INDIANA — PlaintifPAppellee-Respondent;

TABLE OF CONTENTS

Cover Sheet

1

Questions Presented

2-4

List of Parties

5

Table of Contents Page

6

References to Opinion(s)

7

Table of Authorities

8-9

Jurisdiction

10

Constitutional and Statutory Provisions Involved

11-12

Statement of the Case

12-21

Argument(s)

21-27

Reasons for Granting of Writ

27-28

Conclusion

28

Proof of Service

29

Word Count Certificate of Compliance

30

Lo

REFERENCES TO OPINION(S)

The Petitioner respectfully requests that Judicial Notice be taken in

accordance with Federal Rule of Evidence 201(d) to review the matters as relate to

all of the following Cause Number(s) in their entirety;

STATE OF INDIANA (Plaintiff) v. ROBERT H. SMITH (Defendant)

Wabash County, Indiana Trial Cause: 85C0T1608-F4-925; and

ROBERT H. SMITH (Appellant-Petitioner) v. STATE OF INDIANA (Appellee Respondent) Indiana Court of Appeals/Supreme Court; 85A05-1712-CR-2908 2

2 (Please reference specifically to [an] ‘ Oral Argument held on the 27th of November, 2018 at

the Indiana University - South Bend, Indiana Campus where the Petitioner was not

present, and that only Appellate Counsel (Daniel Vanderpool) made argument on the

Petitioner’s behalf. To current date, the Petitioner has made attempts to obtain the full

and complete record in Appellate Cause: 85A05-1712-CR-2908 and he has been denied the

ability to either access or to modify and correct the record by the Indiana Supreme Court

without cause. Due to the Petitioner having no access to the internet, this matter regarding

the denial of the Petitioner’s access to the full and complete record of proceedings in 85A051712-CR-2908 has now risen to an injury of constitutional magnitude. (Reference)

(SCOTUS ruling) Rush v. United States (1977) (Citation Omitted).

h

/

TABLE OF AUTHORITIES

Rule(s)

S.Ct. Rule 10

S.Ct. Rule 13.1

Rule(s) Indiana

Indiana Appellate Rule 7(B)

Indiana Rule ofEvidence 403

Indiana Rule ofEvidence 404(b)

Indiana Rule ofEvidence 613

Indiana Rule ofEvidence 616

Indiana Rule ofEvidence 801

2,

10,

14,

20, 22, 27

20, 22,

3,

23, 26

3,

Rules (United States)

Federal Rule ofEvidence 201 (d)

Federal Rule ofEvidence 403

7,

20,

Statute(s) (United States)

Title 28 USC §§ 1251, 1254(1), (2), 1257, 1746(1),

2244, 2254, 2253(c) (2), (e) (l)

2, 10,

Statute (s) (Indiana)

Indiana Code § 9-22-1-5

Indiana Code § 35-47-1-2

Indiana Code § 35-50-2S et seq.

Cases (United States)

Arizona v. Gant., 556 US 332, 335, 343 (2009)7

Blufford Hayes, Jr., v. Jill Brown, Warden of the

California State Prison at San Quentin 399 F.3d. 972 @ 988

(9th Cir. October 12, 2004, Argued and Submitted En Banc,

Filed: March 07, 2005);

Bowie1236 F. 3d 1096;

Brown v. Brown, Slip. Op. 16-1014pg. 13/14 f 5-6

(Decided: February 01, 2017) 847F. 3d. 502;

California v. Acevedo, 111 S.Ct. 1982 (1991);

Coleman v. Thompson, 501 US 722 @ 750 (1991);

Douglas v. California, 372 US 353, 357-58 (1963);

Driscoll v. Delo, 71 F.3d. 701 (8th Cir. 1995);

Erickson v. Pardus, 551 US 89, 94 (2007);

Evitts v. Lucey, 469 US 387, 396 (1985);

23

13,

13,

17,

19,

19

4,

17

4, 10,

10,

26,

28,

10

Haines v. Kerner, 404 US 519, 92 S.Ct. 594; rehearing denied,

405 US948, 92S.Ct. 963 (1972);

Harrington v. Richter, 562 US 86 @ 103 (2011);

Jones v. Brown, 756 F.3d. 1000 (7th■ Cir. February 19, 2014);

Miranda v. Arizona, 384 US 436, 444, 86 S. Ct. 1602, 1612 (1966);

Rush v. United States (SCOTUS) (1977);

Strickland v. Washington, 466 US668, 104S.Ct. 2052(1984);

28

3,

20

11

7,

3, 4, 25,

United States v. LaGrone, 43 F.3d. 332, 337 (7th Cir. 1994);

United States v. Rogers, 118 F. 3d. 466, 470-71 (6th Cir. 1997);

Wong'Sun v. United States, 371 US 471, 83 S.Ct. 407 (1963);

19,

25

22,

Cases (Indiana)

Boushehry v. State ofIndiana, 622 NE 2d 212 (Ind. 1993)

18,

Brown v. State ofIndiana, 18A-CR-1, (07C01-1604-F2-195)

19,

(Ruling- January 15, 2019);

Clark v. State ofIndiana, 994 NE 2d 252 @ 260 (Ind. 2013);

21,

Collett v. State ofIndiana 338 NE 2d 286 (Ind. 1975).;

16,

24,

Domangue v. State, 654 NE 2d 1 (Ind. Ct. App. 1995);

Dycus v. State, 108 NE 3d 301 (Ind. 2018)

11, 20,

23,

Friedel v. State ofIndiana, 714 NE 2d 1231 (Ind. Ct. App. 1999)

22,

Hester v. State ofIndiana, 551 NE 2d 1187 (Ind. Ct. App. 1990);

25,

Johnson v. State, 804 NE 2d 255, 256 (Ind. App. 2004);

27,

Koo v. State ofIndiana, 640 NE 2d 95 (Ind. App. 1994);

25,

Lawrence v. State ofIndiana, 464 NE 2d @ 1294 (Ind. 1984).;

Pirtle v. State ofIndiana, 323 NE 2d 634 (Ind. 1975)

11, 19,

Porter v. State ofIndiana, 512 NE 2d 454 (Ind. App. 1987)

16, 17,

trans. denied;

Sanders v. State ofIndiana, 576 NE 2d 1328 (Ind. App. 1991)

16,

19, 20,

Sellmer v. State ofIndiana, 842 NE 2d 358 (Ind.2006);

17

Shepard v. State ofIndiana, 500 NE 2d 1172

Thompson v. State ofIndiana, 270 Ind. 677, 389 NE 2d 274 (Ind. 1979)21,

Woods v. State ofIndiana, 640 NE 2d 1089, (Ind. Oct. 06, 1994)

18,

Young v. State ofIndiana, 564 NE 2d 968 @ 972 (Ind. 1991);

18,

trans. denied.

24, 25,

Zavodnik v. Harper, 17NE 3d259 (Ind. 2014);

Other Authorities

Article 1 § 11, 13 - Indiana Constitution

19,

4th, 5th, 6th 8th and 14th amendment(s) of the United States Constitution.

PP. 2, 3, 5, 11, 12, 19, 21, 22, 23, 26,

7

JURISDICTION

Under United States Supreme Court Rule 13.1 and Title 28 USC § § 1251,

1254(1), (2), 1257, this Honorable Court has jurisdiction by certification at any time

by a court of appeals of any question of law in any civil or criminal case as to which

instructions are desired, and upon such certification the United States Supreme

Court may. give binding instructions or require the entire record to be sent up for

decision of the entire matter in controversy. The Petitioner Robert H. Smith has

been procedurally defaulted by no fault of his own and has been prevented from

exhausting any and all remedies in the Indiana State Court(s) due to ineffectiveness

of his appellate counsel on direct review. (See) Coleman v. Thompson, 501 US 722 @

754 (1991).; “[f]or if the attorney appointed by the State to pursue direct appeal is

ineffective, the prisoner has been denied fair process and the opportunity to comply

with the State’s procedures and obtain an adjudication on the merits ofhis claims.'(See) additionally, Evitts v. Lucey, 469 US 387, 396 (1985); Douglas v. California,

372 US 353, 357-58 (1963) (holding States must appoint counsel on a prisoner’s first

appeal). (Emphasis-Petitioner). The Petitioner Robert H. Smith has complied with

any and all applications timely made in both the Indiana Court of Appeals and the

Indiana State Supreme Court. The Petitioner now seeks relief herein to the

unlawful conviction and sentence in trial cause; State of Indiana, County of

Wabash, Circuit Court No: 85C01-1608-F4-925 that is in violation of federal

constitutional law.

/fc>

uEA-

/- S>~

j2—7^

//vi _k //I aJ/l

£U>ot<L-'7'

of-

/- /£"

,\ J O a

M / ohr /Vi

/fj£-/r?z> A--A A h

/hit- - e/t- 7^1°%

)X / —

/ Z //A j 7^-0 (^

/ e^o 7s? -

}-y Y*y£o^ "y^L

fLsi^i JL^ j— f '<<1 ci.

l

e—S ;

z

/

O

Ai /

a) $

-3>«zy;y t O *-\

A t-

-—15 o <^:

/- <

<9 Z-//S~ j 7^0 / ^

<S^> la.

A /L£ ,-w £ £2e> u/LTf

D/~

OS / Oc7 j ZsT> l ^

(J'O m/lt

/4l£/noA-AAhu* /A

/-/

77-A A ,s y7«

-/;/^P; _b o-^n / e~£f

/^A|A//\/J7l

F“S>

o F~

ylP'b^A*— s

/ oA^^a>

/- /

S£7? o r- t h i z. - cl(l~ -z,q o s’

<2—d^—V' 7' ' •a—jJ f

^)

do u e*'—'

cC$a'1*-J}

/ / g / xo ( <j

/ .S> 7*7^/al^O‘ s>

O^ / -2>Q / Z-o / ^

/- /

CONSTITUTIONAL AND STATUTORY PROVISION(S) INVOLVED

The Petitioner is invoking federal review for violation(s) for the following under

the laws of the United States;

l) Violation(s) under the 4th amendment to the U.S. Constitution of unlawful

seizure of the body, and to the State’s unlawful intrusion of a vehicle where

no immediate exigent circumstances existed, and by the invocation of a

community caretaking standard for the inventorying and/or the protection of

property from loss. A false premise to where the Official(s) stepped outside

the scope to seek investigatory premise in order to gather evidence

unlawfully without the consent of the petitioner. That any “[c]onsent to

search without advice of counsel, was illegally obtained and a violation of the

Petitioner SMITH’S right under the Rule invoked by (SCOTUS) in Miranda

v. Arizona, 384 US 436, 444, 86 S. Ct. 1602, 1612 (1966) (Emphasis

Petitioner). (Reference) Pirtle v. State of Indiana, 323 NE 2d 634 (Ind. 1975)

and footnote 3.

2) Violation(s) under the 5th amendment to the United States Constitution of

the denial of due process of law.

3 It has additionally been reiterated that; “The Indiana Supreme Court held [that] a consent

to search obtained from a citizen in custody is invalid under Article 1 § 13 of the Indiana

Constitution, unless that person is informed of his right to counsel before consenting to a

search.” That this premise applies specifically to homes and vehicles. (See) Dycus v. State

of Indiana, 108 NE 3d 301 (Ind. 2018), 18S-CR-488, (Indiana Appellate Cause: 49A05-1705CR-978); (Previous Ruling) 90 NE 3d 1215, 1220-26 (Ind. Ct. App.. 2017).

//

3) Violation(s) under the 6th amendment to the United States Constitution of

the denial of a right to a fair and impartial trial by jury, the right to effective

counsel for defense, and access to compulsory process to obtain witnesses in

his favor, and for the trial counsel(s) failure(s) to properly challenge any and

all prior inconsistent statement(s) made by witness’s and for failure(s) to

employ proper trial strategy for impeachment purposes, and for any and all

counsel(s) failure(s) to proffer proper affirmative defenses for mitigation

purposes.

4) Violation(s) under the 8th amendment of unlawful restraint of liberty done

with malice and ‘ill-will’ inflicting cruel and unusual punishment against the

petitioner.

5) Violation(s) under the 14th amendment to the United States Constitution as

applies to the State’s (i.e. denial of the equal protection clause) re: the laws of

the United States.

(Note* proper application of both the

5th,

6th

amendment(s)).

STATEMENT OF THE CASE

Appellant-Petitioner Robert Smith (hereafter ‘Smith’) tenders this Petition

for a Writ of Certiorari to the Indiana Supreme Court under necessity to obtain fair

review of the issues previously affirmed erroneously by the Indiana Court of

Appeals and denied review by the Indiana Supreme Court in 85A05-1712-CR-2908.

Smith asserts that his inherent rights under the 4th, 5th, 6th, 8th and 14th

amendment(s) of the United States Constitution were violated by the conviction and

/ Z

sentence imposed in Indiana Cause Number: 85C01T608-F4-925. Specifically, that

‘Smith’ suffered injury by violation(s) prohibiting the State from conducting [an]

unreasonable search and seizure and the denial of a fair and impartial trial by jury,

both in violation of the due process and equal protection clauses of the United

States Constitution, which has application to the State(s) under the 14th

Amendment.

Smith’ was convicted and sentenced after a jury trial to the Indiana

Department of Corrections (IDOC) for the following;

Count I;

Habitual Traffic Violator (HTV) as a Level ‘5’ felony; (6 yrs.)

Count II;

Possession of Methamphetamine, as a Level ‘4’ felony; (12 yrs.)

Count III;

Illegal possession of a hypodermic syringe,

a Level ‘6’ felony; (2 yrs)

Count IV;

(CHWOL) ‘Carrying a Handgun without a License’, as a

Class ‘A’ Misdemeanor (Indiana Code § 35-47-2-1); merged with

Count V.

Upon a jury conviction upon Count(s) I TV, the Petitioner was the subsequently

convicted in a bench trial of Count(s) V and VI;

Count V;

An enhancement on Count IV, as a convicted felon within the

past fifteen (15) years raising it to a Level ‘5’ felony; (6 yrs.) and

Count VI;

An enhancement as an habitual offender under Indiana Code §

35-50-2-8 (d) (l) 4; (13 yrs.) attached to Count II;

4 As applies to the Petitioner Robert H. Smith;

Indiana Code § 35-50-2-8: Habitual offenders; (d) A person convicted of a felony offense is a

habitual offender if the state proves beyond a reasonable doubt that: (l) the person has

been convicted of three (3) prior unrelated felonies! and

/ 3

The trial court sentenced ‘Smith’ to an aggregate term of twenty-five (25)

years to be fully executed in the IDOC. ‘Smith’ believes the conviction and sentence

as imposed is erroneous, and should have been reviewed by the court in accordance

with Indiana Appellate Rule 7(B). In addition, that no exigent circumstances

existed at the point of initial contact with law enforcement beyond hearsay of the

complaining witnesses John Gillam and Amanda Snow. The original officer

initiating the events Phillip Mickleson ‘created’ exigent circumstance(s) by claiming

at the scene that ‘Smith’ could not declare ‘ownership’ of a vehicle (A Chrysler

Sebring 2-door ‘Coupe’ License No. IN-726EN) owned by one Brittney Saylor of

Peru, Indiana. (Reference) Trial Trans. Vol. 2 of 3 pp. 85 If 19 through pp. 86 f 6;

Page 85

OFFICER MICKLESON: [I] “Asked him [‘Smith’] whose vehicle it was, He

just said a buddy.

Q. That they were in?

A. Yep.

not more than ten (10) years have elapsed between the time the person was released from

imprisonment, probation, or parole (whichever is latest) for at least one (l) of the three (3)

prior unrelated felonies and the time the person committed the current offense.

(j) Habitual offender is a status that results in an enhanced sentence. It is not a separate

crime and does not result in a consecutive sentence. The court shall attach the habitual

offender enhancement to the felony conviction with the highest sentence imposed and

specify which felony count is being enhanced. If the felony enhanced by the habitual

offender determination is set aside or vacated, the court shall resentence the person and

apply the habitual offender enhancement to the felony conviction with the next highest

sentence in the underlying cause, if any.

(k) A prior unrelated felony conviction may not be collaterally attacked during a habitual

offender proceeding unless the conviction is constitutionally invalid.

H

Q. All right. Could they give you a name of whose vehicle they were in?

A. No.

Q. They said they were waiting for a friend.

Page 86

A. Yep. Waiting for a friend to drive them.

Q. Okay. Did they say who that friend was?

A. They didn’t.

Q. All right. Just that they were waiting for a friend to drive them?

A. Mm - hmm (yes).

As noted in the Indiana Court of Appeals Appellate Memorandum/Opinion

dated December 14, 2018; in 85A05-1712-CR-2908 f [7] that the vehicle was located

in a parking spot in the [Shell] gas station’s small parking lot. (See) State’s Exhibit

T: Which is an aerial photograph of the gas station, which shows approximately ten

to twelve parking spots. Note* additionally; Officer Mickleson’s testimony (curiously

omitted by Appellate Counsel Daniel Vanderpool on direct appeal) was ‘dubious’ re:

the ability of ‘Smith’ as being allowed to ‘leave’ the scene at the Shell station before

and once a cursory inquest was done re: the complainant(s) statement(s) that

‘Smith’ had threatened them and that ‘Smith’ did not know anything about it?

Officer Mickleson’s testimony was fallacious (i.e misleading and deceptive) and this

attributes to the Officer’s veracity being dispositive with re: to ‘Smith’s’ version of

events. (See) Trial Trans. Vol. 2 of 3 pp. 104 If 17 through pp. 105 11 4;

Page 104

/s'

THE COURT: For the Record, the witness [Mickleson] is referencing State’s

Exhibit T.

Q. So you pulled in the far north entrance?

A. Correct.

Q. Off of Wabash Street, correct?

A. Porrect.

Q. And then you said you parked behind the vehicle?

A. Yes.

Q. So you were blocking the Chrysler Sebring in at that point?

A. No.

Page 105

Q. They could have moved and left? There was - A. There was room.

So at this time Officer Mickleson creates an undue controversy citing the

inference that at any time ‘Smith’ was ‘free to leave’, knowing full well that

[Mickleson] was subsequently creating an ‘exigent circumstance’ based on the

erroneous version that ‘Smith’ had failed to identify the owner of the ‘Chrysler

Sebring’. Based on this premise, it was Officer Mickleson who then made a

unilateral decision to impound the vehicle even though the City of Wabash Indiana

Police Department had no established policy with re: of the decision to impound

vehicles (See) Suppression Tr. Vol. 2 pp. 11-14, 16~18; App. Appx. Vol. 2 pp. 115-116

That “The police in this particular case were solely trying to use a procedural

mechanism in order to go on a ‘fishing expedition’ to gather additional evidence (i.e.

a report of alleged possession of a handgun) to use against ‘Smith’.

/O

It . has been established that ‘Once a vehicle has been stopped for

‘investigative’ purposes, law enforcement officer(s) may search [a] vehicle for

weapons if the officer(s) reasonably believe they might be in danger.’ (See) Sanders

v. State of Indiana, 576 NE 2d 1328 (Ind. App. 1991) ; Whether reasonable, there

are specific reasonable inferences that officer’s are entitled to draw based on the

facts. (See) Collett v. State of Indiana

338 NE 2d 286 (Ind. 1975).; however,

Officer’s do not have probable cause to search car merely based on a traffic

violation. (In the Petitioner’s case, being a ‘HTV’) Porter v. State ofIndiana, 512 NE

2d 454 (Ind. App. 1987) trans. denied! California v. Acevedo, 111 S.Ct. 1982 (1991).

Based on the Officer’s statement(s), they were required to investigate the

complainant(s) statement(s) first in order to indicate that the information being

provided against Smith was trustworthy and that there was reasonable inference

that a crime had been committed. (See) Shepard v. State of Indiana, 500 NE 2d

1172. The vehicle in question may only have been subject to a warrantless search if

justified by some other exception under the 4th amendment’s warrant requirement.

This would have been only been reasonable had there been an incident between the

arresting Officer’s and the vehicle’s occupant Robert H. Smith. There was no

incident, therefore in relation to the Court’s ruling in Arizona v. Gant. 556 US 332,

335, 343 (2009); only incident to the arrest of the occupant, police may search the

passenger compartment of the vehicle;

(l) “when it is reasonable to believe that evidence of [an] offense of arrest

might be found in the vehicle” or

/

-\

\

(2)

“when the arrestee is unsecured and within reaching distance of the

passenger compartment at the time of the search.”

In Smith’s case, the State asserted only ‘constructive possession’, making

inference that Smith had the ability to maintain control and dominion over the gun

in question, and that constructive possession may be imputed to the driver of the

vehicle. Woods v. State of Indiana, 640 NE 2d 1089, (Ind. Oct. 06, 1994); Young v.

State of Indiana, 564 NE 2d 968 @ 972 (Ind. 1991); trans. denied. “A warrantless

search of an automobile may be conducted during the course of an arrest under the

exception which permits a search of the immediate area that is within the arrestee’s

control.” Boushehry v. State of Indiana, 622 NE 2d 212 (Ind. 1993). In the trial of

the Petitioner SMITH, the cross-examination of Officer George Ryan Short even

concluded that [Short] had no visual sighting of a supposed handgun while he

effectively was looking into the vehicle on the driver’s side of the vehicle [i.e. Smith’s

immediate area]. (See) Trial Trans. Pg. 177 1T 16~26;

16. Q. - back also and do you - are you able to see the gun on the

17. passenger floorboard?

18. A. I didn’t see it until I was on the passenger side.

19. Q. Was anything covering it up?

20. A. I can’t tell you exactly today, but I believe so because

21. I’m sure I would have seen it if it wasn’t. But I can’t say

22. what was on it today. It’s been too long.

23. Q. Do you believe you moved something 24. A. Yes.

25. Q. — to see the gun?

26. A. Right. 5

5 Please Note * this response as given by Officer George Ryan Short would imply that the

gun in question was located only after being moved from somewhere other than the

passenger floorboard, giving proper inference that the gun would not have been in the

it

It has been ruled upon that; “Where a police officer approached [a] defendant

and asked to search [the] car in. connection with an anonymous tip, defendant was

‘in custody’. The Officer erred by obtaining defendant’s consent to search without

giving [a] ‘Pirtld 6 warning about [the] right to consult with counsel; [as relates to

the Petitioner SMITH] [any implied] consent was invalid and the resulting search

violated the 4th amendment of the United States Constitution and Indiana

Constitution, Article 1§ 11. (Reference) Sellmer v. State of Indiana, 842 NE 2d 358

(Ind.2006); Brown v. State of Indiana, 18A-CR-1, (07C01-1604-F2-195) (Ruling:

January 15, 2019). That the Indiana Constitution affords such a right is progressive

towards the way the protection of a person’s right against unlawful search and

seizure should be preserved by Officer(s) who are sworn to uphold both the Indiana

and United States Constitution(s), even more so, this was the deliberate intention of

the founders when the United States Constitution was drafted and ratified.7 (See)

United States v. LaGrone, 43 F.3d. 332, 337 (7th Cir. 1994); that although “Federal

immediate control or dominion of the Petitioner SMITH, thereby discrediting the State’s

argument with regards to the petitioner maintaining any ‘constructive possession’ over the

gun.

6 Pirtle v. State ofIndiana, 323 NE 2d 634 (Ind. 1975) Id.

7 (Referencing) Blufford Hayes, Jr., v. Jill Brown, Warden of the California State Prison at

San Quentin 399 F.3d. 972 @ 988 (9th Cir. October 12, 2004, Argued and Submitted En

Banc, Filed: March 07, 2005); Quoting, Sidney R. Thomas J., “As we stated in ‘Bowid 236

F.3d 1096; The authentic majesty in our Constitution derives in a large measure from the

rule of law - principle and process instead of person. Conceived in the shadow of an abusive

and unanswerable tyrant who rejected all authority save his own, our ancestors wisely

birthed a government not of leaders, but of servants of the law. Nowhere in the [United

States] Constitution or in the Declaration of Independence, nor for that matter in the

Federalist or in any other writing of the Founding Fathers, can one find a single utterance

that could justify a decision by any oath-beholden servant of the law to look the other way

when confronted by the real possibility of being complicit in the wrongful use of false

evidence to secure a conviction in court.” (Emphasis-Petitioner).

n

Constitutional Law provides no provision to consult with counsel before consent to

search is obtained, however the Indiana Constitution affords such a right.”

(Reference; Dycus v. State, Id. and Sellmer Id., @ 365; Jones v. Brown, 756 F.3d.

1000 (7th Cir. February 19, 2014).

With re: to Issue two (2) ‘Smith’ was severely prejudiced during the trial

proceedings when the trial court admitted evidence of prior bad acts that the

Appellate Court ruled as ‘harmless error’. (See) Memorandum/Opinion of December

14, 2018 in 85A05-1712-CR-2908 If [32], ‘Smith’ suffered irreparable harm and

prejudice under Indiana Rule of Evidence 403 8 ,

[and] that the victim(s)

unsubstantiated statement(s) re: ‘Smith’s’ alleged possession of a ‘pink’ handgun

two (2) weeks previously from the date of his arrest in trial cause: 85C01~1608'F4925 had no business being testified to in front of the jury, which was too strained

and remote to be reasonable, and the extrinsic evidence was therefore inadmissible

and should have been excluded. As ‘Gillam’ claimed to have only ‘seen’ a gun in

Smith’s’ possession on the 1st of August, 2016. Not that he [Smith] was attempting

to use it in a threatening manner towards him [Gillam]. Please additionally note

that the witnesses (Gillam and Snow) had claimed to have not seen ‘Smith’ for a

least a month prior to the events in question. This claim is proof of prior

inconsistent statements and they should have been raised by trial counsel Kristina

8 (For Comparison re: Federal Rule of Evidence No. 403; “The Court may exclude relevant

evidence if its probative value is substantially outweighed by the danger of one or more of

the following; (i) unfair prejudice; (ii) confusing the issue(s); (iii) misleading the jury; (iv)

wasting time; or (v) needlessly presenting cumulative evidence.”

Lynn as a basis for impeachment, as it went to the credibility of the witnesses and

for the trier(s) of fact (i.e. the jury) to be able to judge this accordingly. The evidence

was truly devoid of substance and failed to meet the standards under Indiana Rule

ofEvidence 404(b), as mere possession of a handgun (allegedly) is not evidence with

re^ to [either] ill-conceived motive, intent etc. Due to all these verifying factor(s) and

incorrect statements as were elicited in error under Indiana law, ‘Smith’ now

requests this cause be reviewed for a Writ of Certiorari by the United States

Supreme Court.

ARGUMENT

1. The trial court improperly admitted evidence of a handgun found during a

search of a vehicle the Petitioner Robert H. Smith was driving.

The Indiana Court of Appeals Court deviated from its State Supreme Court

precedent previously as established in Clark v. State of Indiana, 994 NE 2d 252 @

260 (Ind. 2013) was erroneous as (‘reversal’ would be required when the admission

[was] clearly against logic and the effect of the facts and circumstances and the

error affect[ed] a parties substantial rights) Id. @ 260. The State’s argument is that

[‘Smith’s’] standing under the 4th amendment to the United States Constitution was

non-existent, and that he had no inherent right to challenge the search because he

did not own the vehicle and did not establish proof to Officer Mickleson that he had

the owner’s permission to drive it. The informing issue at the forefront of the events

.

in question was only exigent on ‘Smith’ allegedly making threat(s)(these were never

substantiated on the date of offense) against the complainant(s) Gillam and Snow,

not whether or not ‘Smith’ had permission to use the vehicle that is the point of

controversy herein. The vehicle location and the Officer’s initial contact with ’Smith’

were demonstrative of solely an investigatory process, despite their suspicions re:

‘Smith’s’ apparent ‘HTV’ status. This fact alone did not give rise to an exigent

circumstance in order to give police the right to infringe on ‘Smith’s’ right to

‘consent’ to a search of the vehicle on August 16, 2016 (As ‘Smith’ had claimed to be

‘buying’ the vehicle from a friend). (See) Hester v. State ofIndiana, 551 NE 2d 1187

(Ind. Ct. App. 1990) (“[djriver of car had standing to challenge search and seizure of

items found therein, even though he claimed no property interest in either car or

items found inside”). The police solely used the ‘inventory and booking’ process as a

‘ruse’ for a premise to take unlawful control of the vehicle and rummage for any and

all incriminating evidence (i.e. At this point, an ‘alleged’ handgun) against ‘Smith’.

Note * Record of Proceedings in Cause No: 85C0T1608'F4’925 and the Warrant

Application on August 17, 2016 re: the DNA Collection for the Petitioner ‘Smith’.

(See) Laboratory Case No. 16F-Q2642 done by the Indiana State Police — DNA

Serologist Bryan Good. Results as attributable to ‘Smith’ were that a conclusive

DNA match was never established with re: to either actual and/ or constructive

possession of the handgun found. Police presumption should have been subject to

the exclusionary rule under both Indiana Rule of Evidence No(s) 403 & 404(b) et

seq. (See) WongSun v. United States, 371 US 471, 83 S.Ct. 407 (1963) re: ‘Fruit of

'Ll

the Poisonous Tree’ doctrine. The Officer’s and the court subsequently abused their

discretion as the court ignored the inherent rights of the Petitioner ‘Smith’

specifically under the 4th amendment of the United States Constitution.

It is more than obvious considering the sequence of events that are solely

based on unsubstantiated ‘threats’ by the complainant’s (Gillam and Snow) who

were trying to impugn ‘Smith’ in order to avoid having to be held accountable for

their illicit actions of‘liquidating’ the ‘Smith’s’ property without his consent. Due to

the lack of exigency and Officer Mickleson’s contradictory testimony (Supra), this

violated ‘Smith’s’ rights and goes to [a] bias recognizable under Indiana Rule of

Evidence 616, that the Officer adhered to against him. (See) Friedel v. State of

Indiana, 714 NE 2d 1231 (Ind. Ct. App. 1999); (“Where police did not have probable

cause to search the defendant’s vehicle following a traffic stop solely because a

computer check revealed he had a lengthy criminal record:”) Trial Trans. 77 IT 23

through 78 11 5 — 85C01~1608~F4-925. Whereupon this issue should have been

thoroughly reviewed by the Indiana Supreme Court and relief granted by proper

suppression of the search results (where Officer ‘Mickleson’ attempted to invoke

Indiana Code § 9-22-1-5 as a false premise for vehicle seizure, although it had been

ascertained that ‘Smith’ had ‘standing’ to assert ownership lawfully).

This false

premise additionally tainted the ability of the Petitioner ‘Smith’ to have a fair and

impartial trial by jury in violation of the 4th, 5th, 6th, 8th & 14th amendment(s) of the

United States Constitution.

, _>

2. That the Appellate Court ruled erroneously when it affirmed the trial court’s

admission of extrinsic evidence or prior bad acts was ‘harmless error’.

As for review, the Petition for Rehearing filed on January 11, 2019 succinctly

pointed out that the allegation re: the ‘pink’ handgun that was allegedly in the

possession of‘Smith’ on the 1st of August, 2016 were too strained and remote to be

considered reasonable, and that particular ‘extrinsic’ evidence was inadmissible and

any and all testimony relating to it by the Complainant ‘Gillam’ should have been

suppressed. The witnesses (both Gillam and Snow) had a ‘financial motive’ for

testifying against ‘Smith’ due to the theft of property asserted by ‘Smith’. The jury

should have clearly been allowed to hear those matters in controversy as they were

demonstrative as to motive, intent etc., and relevant as to the witnesses’ credibility.

(See) Domangue v. State, 654 NE 2d 1 (Ind. Ct. App. 1995). Therefore, the

admission with re: to ‘Smith’s’ alleged ‘prior bad acts’ couldn’t be considered

‘harmless’. As such, the admission weighed in the balance sufficiently leaned the

scales

in

favor

of the

State.

This

is

contradictory

with

re:

to

the

Memorandum/Opinion given on December 14. 2018 If [31] i in the ruling the Indiana

Court of Appeals cited and were in agreement with the argument put forth by

‘Smith’,' “[t]hat the trial court erred by admitting evidence that ‘Smith’ possessed a

pink gun at an earlier date.” Id., then [The Court] deviated from its own ruling. The

Court should additionally acknowledge that the standard practice of Indiana

Court’s premise regarding the “[ujncorroborative testimony of one (l) witness [is]

2>f

sufficient to sustain conviction”

(with re: to Petitioner SMITH being convicted

solely on the testimony of one (l) witness who claimed to have direct knowledge

[John Gillam] while the main complainant and witness [Amanda Snow)]was exempt

from testifying) is egregious and needs to be abolished (See) Johnson v. State, 804

NE 2d 255, 256 (Ind. App. 2004). The Petitioner ‘Smith’ wishes and prays the Court

to rule on his issues in the spirit of its ruling in Zavodnik v. Harper, 17 NE 3d 259

(Ind. 2014); Stating that ‘economic discrimination’ in the Halls of Justice is wrong,

and since “Indiana’s Admission to the Union (December 11, 1816 C.E.) that (the

State) has been a ‘leader’ in providing fair treatment to indigent person(s) while in

Court.” (Emphasis added)

Indiana’s ‘fundamental erroi3 rule sometimes affords relief to claimants who

did not preserve an issue before the trial court and seek to raise it for the first time

on appeal. As is similar to the federal ‘plain errof doctrine; “[w]ith respect to [a]

forfeited claim when intervening case establishes a new rule, “[w]e must apply the

‘plain error’ doctrine to analyze the failure to submit the question of materiality to

the jury.” (See) United States v. Rogers, 118 F.3d. 466, 470-71 (6th Cir. 1997).

Therefore, had Smith’s Appellate counsel raised these issue(s) adequately there is a

reasonable likelihood that the Indiana Court of Appeals would have reversed and

remanded for re-trial. The Petitioner, therefore, received ineffective assistance of

appellate counsel. Id., Strickland v. Washington, 466 US @ 681, 694; 104 S.Ct. 2052

(1984); and Lawrence v. State ofIndiana, 464 NE 2d @ 1294 (Ind. 1984).

'Ll*

Petitioner Claim: The fact that the Indiana Court(s) reasonably found that the

Petitioner’s trial counsel was not ineffective for the way she attempted to impeach

the State’s witness John Gillam was erroneous and violated the Petitioner’s rights

to due process of law and to the guarantee under the 14th amendment as applies to

the State(s) of equal protection of the laws. The Petitioner’s trial counsel had an

inherent right to confront any and all adverse witnesses adequately and to

demonstrate effectiveness in the questioning of trial witnesses in accordance with

the 6th amendment to the United States Constitution.

Where a person testifies against a defendant in exchange for any and all

deal(s)/plea(s)/reduction(s) in sentence it is imperative that the State discloses any

and all agreement(s) whether written or unwritten. (Note) Driscoll v. Delo, 71 F.3d.

701 (8th Cir. 1995) where; “Trial Counsel’s failure to properly utilize witnesses’ prior

inconsistent

statements

for

impeachment

purposes

constitutes

ineffective

assistance.” Asserting that there was an underlying motive for John Gillam’s

statements that were given, and that Petitioner Smith wanted it rooted out. The

Petitioner’s trial counsel already had foreknowledge that there existed a bias,

interest and/or motive for John Gillam to testify falsely, due to a specific fact that

was obfuscated and then subsequently was never made completely clear. The fact

was that the witness John Gillam had an ulterior motive to testify falsely or to

profit from the Petitioner’ conviction in the case. If the Petitioner’s trial counsel had

shown the witness bias under I.R.E. 616, it is quite likely that the outcome of the

Petitioner’s trial would have been different. It should additionally be noted that any

and all bias of important witnesses is to be considered a significant issue of high

probative value and is thus is generally considered admissible over Indiana Rules of

Evidence 403 objections. Note that “A witness may be impeached by showing that

he or she has a financial interest or stands to profit from outcome of the case, Koo v.

State of Indiana, 640 NE 2d 95 (Ind. App. 1994) It is further demonstrative of

ineffectiveness of trial and appellate counsel(s) where they denied the Petitioner the

ability to be able to impeach John Gillam to show an implicit bias. It is reversible

constitutional error to prevent the Petitioner in his criminal action under 85C011608-F4-925 from fully impeaching important state witnesses by showing their

personal biases or motives to assist the prosecution. Petit ioner believes that a

factual predicate for the claim(s) has been established and proper evidentiary

hearing(s) will expand the record to prove the constitutional error(s). Which the

State Court(s) should deal with. That the facts, [when] proven and viewed in light of

the evidence as a whole, would be sufficient to establish by clear and convincing

evidence that no reasonable fact-finder would have found the Petitioner guilty of the

crime(s) had there been no constitutional error(s).

U i

REASONS FOR GRANTING THE PETITION

The Petitioner has suffered an unlawful conviction and sentence of

constitutional magnitude.

This matter is unconscionable in the annal(s) of

American Constitutional Law, and in need earnest review for any and all

appropriate relief to the Petitioner. (See) Thompson v. State of Indiana , 270 Ind.

677, 389 NE 2d 274 (Ind. 1979); that, “[fundamental constitutional guarantees are

[to be] absolute, and are outside the discretion of any court to ignore or deny.”

(Emphasis-Petitioner).

CONCLUSION

WHEREFORE, the Petitioner herein tenders this Petition for Certiorari in

good faith for review of any and all issue(s) of newly discovered evidence not

previously presented or heard. Petitioner asks that this pleading be construed

liberally as he is a ‘pro se’ prisoner making this application under necessity to gain

relief. (Reference) Erickson v. Pardus, 551 US 89, 94 (2007) and Haines v. Kerner,

404 US 519, 92 S.Ct. 594 rehearing denied, 405 US 948, 92 S.Ct. 963 (1972). The

Petitioner believes he is entitled to relief. This is done under necessity, and the

Petitioner requests that this Petition for a writ of certiorari be granted in the

interests of fundamental fairness and justice. SWORN to under Title 28 USC §

1746(l). Respectfully Submitted by Petitioner;

ROBERT H. SMITH #185788/EE-45

C/O One Park Row

Michigan City, Indiana [46360]