Petition for Writ of Certiorari — Skip Hansen, Petitioner v. Kentucky

Supreme Court briefDec 23, 2020

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20-7644

No:

Supreme Coun, U.S.

FILED

DEC 2 3 2020

OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

PETITIONER

SKIP LEE HANSEN, Pro Se

RESPONDENT

COMMONWEALTH OF KENTUCKY

On Petition For Writ of Certiorari

To The Kentucky Court Of appeals

PETITION FOR WRIT OF CERTIORARI

ORIGINAL

Skip Lee Hansen, Petitioner, Pro Se

Roederer Correctional Complex

P.O. Box 69

La Grange, KY 40031

(502) 222-0173

QUESTIONS PRESENTED

Did the Kentucky Court of Appeals allow Mr. Hansen’s right to present a full

and complete defense, which is protected by the Sixth and Fourteenth Amendments

to the United States Constitution, be violated by the McCracken Circuit Court when

the Court prohibited defense counsel from questioning multiple witnesses concerning

the alleged victim’s sending nude photos to other people, after the Commonwealth

opened the door to this evidence?

{

LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

RELATED CASES

Commonwealth v. Hansen, No. 18-CR-221, McCracken Circuit Court,

Judgement Entered January 16, 2019.

Hansen v. Commonwealth, No. 2019-CA-132-MR, Kentucky Court of

. Appeals, Opinion Rendered July 31, 2020.

TABLE OF CONTENTS

Questions Presented

List of Parties.

_v_Relatedj3ases

. Table of Contents

Cited Authorities

2-5

Jurisdiction

Constitutional and Statutory Provisions Involved

5-7

Statement of the case

7-12

Reasons For Granting The Petition

13*22

Conclusion

22-23

Appendix

23-24

CITED AUTHORITIES

28 U.S.C. § 1257(a)

United States Supreme Court Order Entered March 19, 2020

Sixth Amendment to the United States Constitution

5, 13, 15, 17, 20-22

Fourteenth Amendment to the United States Constitution

5-6, 13, 15, 17, 22

Kentucky Rules of Evidence, Rule 412

6-7, 12, 14-15

Rules of the Supreme Court of the United States, Rule 10

Kentucky Revised Statutes § 510.145

:. 15

Olden v. Kentucky, 488 U.S. 227 (1988)

State v. Wright, 320 Conn. 781, 816-17,(2016)...

Roberts v. State, 510 So. 2d 885, 892 (Fla. 1987)

State v. Guthrie, 518 S.E. 2d 83, 94 (1999)

People v. Hill, 683 N.E. 2d 188, 191 (1997)........

Commonwealth v. Polk, 965 N.E. 2d 815 (2012)

State v. Johnson, 944 P. 2d 869 (1997)

State v. Grovenstein, 530 S.E. 2d 406, 409 (Ct. App. 2000)

State v. Lang, 403 S.E. 2d 677, 678 (Ct. App. 1991)

Davis v. Alaska, 415 U.S. 308 (1974)

15, 17,-20

State v. Younger, 295 S.E. 2d 453, 456 (1982)

16-17

State v. Jacques, 558 A. 2d 706, 708 (1989)....

State v. McCoy, 274 S.C. 70, 72 (1979)............

Smith v. Illinois, 390 U.S. 129, 131 (1968)

Pointer v. Texas, 380 U.S. 400, 403 (1965)....

People v. Stanaway, 521 N.W. 2d 557 (1994)

17-18

Brookhart v. Janis, 384 U.S. 1, 3, (1966)......

(

Rock v. Arkansas, 483 U.S. 44, 55 (1987)

Chambers v. Mississippi, 410 U.S. 284, 302, (1973)

Michigan v. Lucas, 500 U.S. 145 (1991)

State v. Gaudet, 97 A. 3d 640 (2014)

State v. Mazzaglia, 169 N.H. 489, 495 (2016)

18*19

State v. Degree, 322 N.C. 302, 306 (1988)

Commonwealth v. Beverly, 52 Va. Cir. 255, 257 (2000)

Perry v. Commonwealth, 390 S.W. 3d 128 (Ky. 2012)

19-20

Holmes v. South Carolina, 547 U.S. 319, 324 (2006)

19-20

Dennis v. Commonwealth, 306 S.W. 3d 466, 473*474 (Ky. 2010)

19-20

United States v. Scheffer, 523 U.S. 303, 308 (1998)

19*20

Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)

White v. Coplan, 399 F. 3d 18, 24 (1st Cir. 2005)

Barbe v. McBride, 521 F. 3d 443 (4th Cir. 2008)

LaJoie v. Thompson, 217 F. 3d 663 (9th Cir. 2000)

D. W.H. V State 103 So. 3d 850 (2012)

Johnson v. Moore, 472 F. Supp. 2d 1344 (2007)

20-21

People v. Williams, 55 Ill. App. 3d 752 (1977)

State v. Colburn, 2016 MT 41 (2016)

Sussman v. Jenkins, 636 F. 3d 329 (2011)

21.

State v. Shaw, 312 Conn. 85 (2014)

Alexander Hamilton, Federalist No. 22, December 14, 1787

JURISDICTION

The Kentucky Court of Appeals Affirmed Mr. Hansen’s conviction on July 31,

2020. The jurisdiction of this Court is invoked under 28 U.S.C. §1257(a) which

states,

“Final judgements or decrees rendered by the highest court

of a state in which a decision could be had, may be reviewed

by the Supreme Court by writ of certiorari where the

validity of a treaty or statute of the United States is drawn

in question or where the validity of a statute of any state is

drawn in question on the ground of its being repugnant to

the Constitution, treaties, or laws of the United States, or

where any title, right, privilege, or immunity is specially

set up or claimed under the Constitution or the treaties or

statutes of, or any commission held or authority exercised

under, the United States.”

This Petition is timely filed pursuant to this Court’s Order Entered March 19

2020, extending the deadline to file a Petition for a Writ of Certiorari from 90 to 150

days.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Sixth Amendment to the United States Constitution

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of

the State and district wherein the crime shall have been

committed, which district shall have been previously

ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the witnesses

against him! to have compulsory process for obtaining

witnesses in his favor, and to have the Assistance of

Counsel for his defense.

. Fourteenth Amendment to the United States Constitution

All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the United

States and of the State wherein they reside. No State shall

make or enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.

Kentucky Rules of Evidence Rule 412

(a) Evidence generally inadmissible. The following

evidence is not admissible in any civil or criminal

proceeding involving alleged sexual misconduct except as

provided in subsections (b) and (c)- (l) Evidence offered to

prove that any alleged victim engaged in other sexual .

behavior. (2) Evidence offered to prove any alleged victim’s .

sexual predisposition, (b) Exceptions- (1) In a criminal case,

the following evidence is admissible, if otherwise

admissible under these rules- (A) evidence of specific

instances of sexual behavior by the. alleged victim offered

to prove that a person other than the accused was the

source of semen, injury, .or other physical,evidence; (B) .

evidence of specific instances of sexual behavior by the

alleged victim with respect to the person accused of the .

sexual misconduct offered by the accused to prove consent

or by the prosecution; and (C) any other evidence directly

pertaining to the offense charged. (2) In a civil case,

evidence offered to prove the sexual behavior or sexual ..

predisposition of any alleged victim is admissible if it is

otherwise admissible under, these rules and its probative

value substantially outweighs the danger to harm of any

victim and of unfair prejudice to any party. Evidence of an

alleged victim’s reputation is admissible only if it has been

placed in controversy by the alleged victim, (c) Procedure

to determine admissibility, (l) A party intending to offer

evidence under subdivision (b) must: (A) file a written

motion at least fourteen (14) days before trial specifically

describing the evidence and stating the purpose for which

it is offered unless the court, for good cause requires a

different time for filing or permits filing during trial; and

(B) serve the motion on all parties and notify the alleged

victim or, when appropriate, the alleged victim’s guardian

or representative. (2) Before admitting evidence under this

rule the court must conduct a hearing in camera and afford

the victim and parties a right to attend and be heard. The

motion, related papers, and the record of the hearing must

be sealed and remain under seal unless the court orders

otherwise.

STATEMENT OF THE CASE

The Petitioner, Mr. Hansen had known the alleged victim, Anna Townsend,

since she was four years old and as he dated her mother Sariah Cooper for ten years

he was like a father to Anna. Mr. Hansen and Sariah had an on and off relationship

which had recently been stressed due to continuing arguments centered around both

of them seeing other people. On January 17, 2018 Sariah and Mr. Hansen were

arguing yet again.

. •

. -

• - '* •

■ Anna had spent the night at Mr. Hansen’s residence that night which was a

common occurrence and when she returned home, her mother Sariah began snooping

through her phone. Sariah said she wanted to see if Mr. Hansen had been saying

negative things about her to Anna. However, Anna had been at Mr. Hansen’s

residence the previous night so there would have been no logical reason for them to

carry on conversations via messages on their cell phones. Nor would there be any

logical reason for her to purposely send a nude photo of herself from her phone to his.

While searching through Anna’s phone Sariah found a nude photo of Anna that

she mistakenly sent to Mr. Hansen’s phone sometime in the middle of the night.

Sariah immediately went to the police to report this.1

1 Although, Sariah made other claims of inappropriate conduct Mr. Hansen allegedly committed

against Anna over two years prior, which she chose not to report until the discovery of this photo.

This sparked an investigation wherein Mr. Hansen was indicted for ThirdDegree Rape, First-Degree Sexual Abuse, and two Counts of Possess/View Matter

Portraying Sexual Performance by Minor. After the initial indictment was issued a

superseding indictment was issued, wherein Mr. Hansen ultimately sat on trial for

two Counts of Third Degree Rape, Second Degree Unlawful Transaction With a

Minor, Third Degree Sodomy, two Counts of First Degree Sexual Abuse, three Counts

of Possessing/Viewing Matter Portraying a Sexual Performance by a Minor, and six

Counts of Use of a Minor in a Sexual Performance..

The Commonwealth initially alleged that, On or about December 23, 2017 in McCracken County,

Kentucky, [Mr. Hansen] committed the offense of ThirdDegree Rape when, being twenty-one (21) years of age or

more, he engaged in sexual intercourse with [Anna], a

minor less than sixteen (16) years of age (Count I);

On or about December 23, 2017 □ [he] committed the

offense of First-Degree Sexual Abuse when he subjected

[Anna], to sexual contact by forcible compulsion (Count II).

On or about July 13, 2016 0 [he] committed the offense of

Possess/View Matter Portraying Sexual Performance by

Minor when, having knowledge of its content, character,

and that the sexual performance is by a minor, he

knowingly had in his possession or control matter which

visually depicted an actual sexual performance by a minor

(Count III);

On or about January 16, 2018 D [he] committed the offense

of Possess/View Matter Portraying Sexual Performance by

Minor when, having knowledge of its content, character,

and that the sexual performance is by a minor, he

knowingly had in his possession or control matter which

visually depicted an actual sexual performance by a minor

(Counts IV). (See Indictment in Appendix).

This indictment was followed by a superseding indictment wherein the

Commonwealth alleged that,

On or about December 23, 2017 in McCracken County,

Kentucky, [Mr. Hansen] committed the offense of ThirdDegree Rape when, being twenty-one (21) years of age or

more, he engaged in sexual intercourse with [Anna], a

minor less than sixteen (16) years of age (Count I);

Between the dates of August 1, 2017 and October 31, 2017,

D [he] committed the offense of Third-Degree Rape when,

being twenty-one (21) years of age or more, he engaged in

sexual intercourse with [Anna], a minor less than sixteen

(16) years of age (Count II);

Between the dates of August 1, 2017 and December 24,

2017, D [he] committed the offense of Second-Degree

unlawful transaction with a Minor when he knowingly

induced, assisted, or caused [Anna] a minor, to engage in

illegal controlled substances activity involving marijuana

(Count III).

Between the dates of August 1, 2017 and December 24,

2017 D [he] committed the offense of Third-Degree Sodomy

when, being twenty-one (21) year's of age 'or'more, he

engagedin deviate sexual intercourse with [Anna], a minor

less than sixteen (16) years of age (Count IV);

On or about December 23, 2017 □ [he] committed the

offense of First-Degree Sexual Abuse when, being twentyone (21) years of age or more, he subjected [Anna], a minor

less than sixteen (16) years of age, to sexual contact (Count

V).

Between the dates of August 1, 2017 arid December 24,

2017 D [he] committed the offense of First-Degree Sexual

Abuse when, being twenty-one (21) years of age or more, he

subjected [Anna], a minor less than sixteen (16) years of

age, to sexual contact (Count VI).

On or about July 13, 2016 D [he] committed the offense of

Possess/View Matter Portraying Sexual Performance by

Minor when, having knowledge of its content, character,

and that the sexual performance is by a minor, he

knowingly had in his possession or control matter which

visually depicted an actual sexual performance by a minor

(Count VII);

On or about September 1, 2017 D [he] committed the

offense of Possess/View Matter Portraying Sexual

Performance by Minor when, having knowledge of its

content, character, and that the sexual performance is by a

minor, he knowingly had in his possession or control

matter which visually depicted an actual sexual

performance by a minor (Count VIII);

On or about January 16, 2018 D [he] committed the offense

of Possess/View Matter Portraying Sexual Performance by

Minor when, having knowledge of its content, character,

and that the sexual performance is by a minor, he

knowingly had in his possession or control matter which

visually depicted an actual sexual performance by a minor

(Counts IX, XII-XV);

On or about December 16, 2017 D [he] committed the

offense of Use of a Minor (Under 16) in a Sexual

Performance when, he employed, consented to, authorized

or induced a minor, less than sixteen (16) years of age, to

engage in a sexual performance (Count X);

On or about December 15, 2017 D [he] committed the

offense of Use of a Minor (Under 16) in a Sexual

Performance when, he employed, consented to, authorized

or induced a minor, less that sixteen (16) years of age, to

engage in. a sexual performance (Count XI). (See

Superseding Indictment in Appendix).

At trial, Anna made numerous allegations against Mr. Hansen, inter alia that

while looking through her phone one day he found a nude photo of her and sent it to

his phone from hers. Anna claimed that Mr. Hansen was always asking her for nude

photos of herself and would offer things of value in exchange for nude photos. She

claimed that she would accept Mr. Hansen’s offers but after receiving payment would

refuse to send the photos. Anna claimed that she had never sent any nude photos to

Mr. Hansen but on multiple occasions admitted that she had sent nude photos to

other people.

Approximately 1-18-00 into an interview on March 16, 2018 Anna admitted

that she took nude photos and videos and sent them to other people. Approximately

1-20-00 into this interview Sariah stated that Anna was caught sending nude photos

to other people at nine years old. Approximately 4^00 into an interview on January

18, 2018 Anna admitted that she had sent nude photos to her boyfriend. In an

interview on May 31, 2018 at approximately 12-04 PM Anna admitted taking nude

photos for other people. When the police attempted a controlled phone call between

Sariah and Mr. Hansen on January 18, 2018 Sariah acknowledged that Anna had

sent nude photos to over 1,000 people.

Although, not mentioned at trial, Anna had previously falsely accused Mr.

Hansen of “touching” her in an attempt to get out of trouble. Anna admitted this in

an interview on March 28, 2018. This information would have been extremely

relevant and the basis of Mr. Hansen’s defense2 considering that he caught Anna and

one of his sons having sex not long before the nude photo was found on his phone.

Anna and Mr. Hansen’s son begged him not to tell Anna’s mother but Mr. Hansen

chose to inform her of the situation nonetheless. This resulted in Anna again being

in trouble with her mother for her ongoing sexual acts.

Prior to trial, the Commonwealth moved the Court to exclude evidence of

Anna’s other sexual conduct and sexual predisposition arid’on November 2, 2018 the

Court Entered an Order excluding such evidence. (See Motion and Order in

Appendix). However, at trial on November 26, 2018, the Commonwealth introduced

and opened the door to the very evidence it previously moved the Court to exclude.

The Commonwealth asked its witness, Anna’s mother Sariah to read a text message

Mr. Hansen sent her wherein he said “I don’t know why she sent it to me. I didn’t ask

2 Mr. Hansen was not aware that the nude photo was sent to his phone and thus could not have

knowingly been in possession of it.

her for it She probably sent it to the wrong person. She sends nudes to everyone.”2.

This presumably led the jury to the belief that Mr. Hansen had knowledge that he

possessed this photo on his phone, which in fact he did not know he was in possession

of.

As the Commonwealth opened the door to this evidence Mr. Hansen’s counsel

requested the Court allow him to cross-examine Sariah concerning Anna previously

sending nude photos to other people, curative admissibility now being necessary. The

Court ruled that although the Commonwealth just.opened the door to this evidence,

it did not warrant the Court to allow Mr. Hansen’s counsel to cross-examine Sariah

concerning Anna sending nude photos to other people. The Court ignored the fact that

the Commonwealth opened the door to this evidence and simply stated that it was

not going to change its earlier ruling.

. _

In misapplying the Rape Shield (KRE 412) to prohibit defense counsel from

eliciting this relevant and constitutionally necessary testimony, the trial court

impeded Mr. Hansen’s right to present a complete defense to the charged offenses by

explaining to the jury that Anna had previously made false allegations against him

as well as explaining why Anna would be inclined to again make false allegations of

sexual abuse against him. Mr. Hansen was also precluded from explaining to the jury

that the nude photo was likely sent to him by mistake and that he was completely

unaware that he was in possession of it.4 Mr. Hansen was effectively left with no

3 As the trial exhibits were sealed Mr. Hansen moved the Court to unseal the exhibits and provide

him a copy. The Court denied Mr. Hansen’s Motion and as a result he is unable to include a copy of

this exhibit with his Petition. (See Motion to Unseal and Order Denying in Appendix).

4 Further, the Commonwealth did not and could not prove that Mr. Hansen ever viewed this photo.

plausible defense.to these charges and as a result was convicted and sentenced to 18

years imprisonment for crimes he did not in fact commit.

REASONS FOR GRANTING THE PETITION

As stated in Rule 10 of the Rules of the Supreme Court of the United States,

Review on a Writ of Certiorari is not a matter of right, but of judicial discretion. A

petition for a Writ of Certiorari, will be granted only for compelling reasons. Mr.

Hansen presents compelling reasons for the Court to grant his Petition, among which

are that a state court of last resort (the Kentucky Court of Appeals) has decided an

important federal question in a way that conflicts with the decisions of other state

courts of last resort and of United States courts of appeals. Further, the Kentucky

Court of Appeals has decided an important federal question in a way that conflicts

with relevant decisions of this Court. Mr. Hansen believes the following argument

justifies this Court granting his Petition'

The right of a defendant in a criminal trial to confront and cross-examine the

witness(s) against him is guaranteed by the Sixth and Fourteenth Amendments to

the United States Constitution and can only be infringed upon in certain narrow

instances which in this case did not exist. By prohibiting defense counsel from

questioning Sariah and other witnesses concerning Anna’s previous sending of nude

photos as well as her previously making false allegations against him, the trial court

violated Mr. Hansen’s right to present a complete defense, in that in attempting to

send the nude photo to another person Anna sent it to Mr. Hansen by mistake and

that he was completely unaware that he even possessed this photo.

Had the Court allowed this line of questioning the witnesses would have

testified that Anna did in fact send nude photos to other people, and had been doing

so for a long period of time, the jury also would have been informed of the fact that

Anna admitted that she previously made false allegations of sexual abuse against Mr.

Hansen in an attempt to get out of trouble. Had the jury received this testimony and

been fully informed of Anna’s previous sexual conduct and sexual predisposition,

coupled with her . admittance to making previous false allegations against the

defendant, the jury likely would have believed Mr. Hansen and found him not guilty

on all Counts. This testimony, coupled with the fact that he recently caught Anna

.having sex with one of his sons and had told Anna’s mother Sariah, reasonably would

have led the jury to conclude.that these allegations like the previous allegations were

false and nothing more than an attempt to draw the attention away from her own

misconduct. The outcome of the trial would have been different beyond a reasonable

doubt.

,Kentucky’s Rape Shield (Kentucky-Rules of Evidence, Rule 412) . generally

precludes evidence offered to prove that any alleged victim engaged in other sexual

behavior as well as evidence offered to prove any alleged victim’s sexual

predisposition. However, there are certain exceptions in criminal cases, among which

are- (A) evidence of specific instances of sexual behavior by the alleged victim offered

to prove that a person other than the accused was the source of semen, injury, or

other physical evidence; (B) evidence of specific instances of sexual behavior by the

alleged victim with respect to the person accused of the sexual misconduct offered by

the accused to prove consent or by the prosecution; and (C) any other evidence directly

pertaining to the offense charged.

Before this type of evidence may be admitted the party intending to offer such

evidence must- (A) file a written motion at least fourteen (14) days before trial

specifically describing the evidence and stating the purpose for which it is offered

unless the court, for good cause requires a different time for filing or permits filing

during trial; and (B) serve the motion on all parties:and notify the alleged victim or,

when appropriate, the alleged victim’s guardian or representative. Also, before

’

admitting evidence under this rule the court must conduct a hearing in camera and

afford the victim and parties a right to attend and be heard.

KRE 412 was enacted in 1990. Prior to it's enactment the rape shield was

codified in Kentucky Revised Statutes § 510.145. This Court previously addressed the

rape shield in Olden v. Kentucky, 488 U.S. 227 (1988) granting Certiorari to the

Kentucky Court of Appeals and^reversing Olden’s conviction because the Court

violated his Sixth and Fourteenth Amendment rights to confront and cross-examine

his accuser. This Court held that,

“[t]he Kentucky Court of Appeals failed to accord proper

weight to Petitioner’s Sixth Amendment right ‘to be

confronted with the witnesses against him’. That right,

incorporated in the Fourteenth Amendment and therefore

available in state proceedings, Pointer v. Texas, 380 U.S.

400 (1965), includes the right to conduct reasonable crossexamination. Davis v. Alaska, 415 U:S. 308, 315-316

(1974).’’

Most states require that when exclusion of such evidence would serve to violate

the defendant’s Constitutional rights, the evidence must be admitted. The Supreme

Court of Connecticut held in State v. Wright, 320 Conn. 781, 816-17, 135 A. 3d 1

(2016) that the State’s rape shield must yield to the defendant’s Constitutional rights^

The Florida Supreme Court has held that if the Rape Shield precludes a defendant

from presenting a full and fair defense, “the statute would have to give way to [the

defendant’s] Constitutional rights.” (Roberts v. State, 510 So. 2d 885, 892 (Fla. 1987)).

West Virginia has held that “the Rape Shield Statute is expressly designed to yield

to Constitutional protections that assure fair trials with just outcomes.” (State v.

/ Guthrie, 205 W. Va. 326, 337, 518 S.E. 2d 83, 94 (1999) (quoting People v. Hill, 289

Ill. App. 3d 859,. 862, 225 Ill. Dec. 244, 247, 683 N.E. 2d 188, 191 (1997)).

The Supreme. Court of Massachusetts, has “recognized that where the rape

, shield statute is in conflict with a defendant’s constitutional right to present evidence .

that might lead the jury to find that a Commonwealth witness is lying or otherwise

unreliable, the statutory prohibition, must give way to the constitutional right.

(Commonwealth v. Polk, 462 Mass. 23, 37*38, 965 N.E. 2d 815 (2012)). The New

Mexico Supreme Court held in State v. Johnson, NMSC36, P 24, 123 N.M. 640, 944

P. 2d 869 “[i]f application of the rape shield law or rule would conflict with the

accused’s confrontation right,if it operates to preclude the defendant from presenting

a full and fair defense, the statute and rule must yield.”

“[T]he Rape Shield Statute d[oes] not bar evidence of a victim’s sexual conduct

if the evidence [i]s offered for a purpose other than to attack the victim’s morality.”

(State v. Grovenstein, 340 S.C. 210, 216, 530 S.E. 2d 406, 409 (Ct. App. 2000) (quoting

State v. Lang, 304 S.C. 300, 301, 403 S.E. 2d 677, 678 (Ct. App. 1991)). The Rape

Shield Statute “was not designed to shield prosecutrix from the effects of her own

inconsistent statements which cast a grave doubt on the credibility of her story.”

(State v. Younger, 306 N.C. 692, 697, 295 S.E. 2d 453, 456 (1982)). The Supreme

Court of Maine has recognized, however, that the state’s interest in protecting victims

of sexual abuse “is neither absolute nor paramount.” Rather, the state’s interest must

be weighed against constitutional right, emanating from the right of confrontation

and the rights to compulsory process and to due process, to be afforded a meaningful

- opportunity to'present a complete defense. (State v. Jacques, 558 A. 2d 706, 708

(1989) (citing Davis v. Alaska, 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105 (1974)

' (the state’s interest in protecting Juvenile offender does not take precedence over

defendant’s right to effectivelycross-examine)). The Court in Jacques also noted that

when a prosecutor opens the door to evidence otherwise inadmissible pursuant to

Rule 412 the admission of a defendant’s evidence to the contrary may be

• constitutionally required. Id. at 708.

” In State v. McCoy, 274 S.C. 70, 72 (1979), the Supreme Court of South Carolina

held “we recognize that generally the right of counsel to cross-examine a prosecuting

witness-is of constitutional dimensions. Normally, cross-examination is essential to a

fair trial as guaranteed by the Sixth Amendment and due process as required by the

Fourteenth Amendment.” This Court held in the case of Smith v. Illinois, 390 U.S.

129, 131, 88 S. Ct. 748, 749*750, 198 L. Ed. 2d 956 (1968), “As the court in Pointer [v.

state of Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 1068, 13 L. Ed. 2d 923], ‘It cannot

seriously be doubted at this late date that the right of cross-examination is included

in the right of an accused in a criminal case to confront the witnesses against him.’

380 U.S. at 404, 85 S. Ct. at 1068. Even more recently we have repeated that ‘[a]

denial of cross examination without waiver * * would be constitutional error of the

first magnitude and no amount of showing of want of prejudice would cure it.’

Brookhart v. Jam's, 384 U.S. 1, 3, 86 S. Ct. 1245, 1246, 16 L. Ed. 2d 314.” The

defendant’s right to due process of law is implicated by the application of a rule that

would exclude.relevant, exculpatory evidence. (People v. Stanaway, 446 Mich. 643,

- 662-680; 521 N.W. 2d 557 (1994)).

-, This Court has held that “[w]hen a state rule of evidence conflicts with the

right [of the accused] to present witnesses, . the. rule may -not be applied

mechanistically to defeat the ends of justice’ but must meet the. fundamental

standards of due process. (Rock v. Arkansas, 483 U.S. 44, 55, 107 S. Ct. 2704, 97 L.

Ed. 2d, 37 (1987) (quoting Chambers v. Mississippi, 410 U.S. 284, 302,. 93 S. Ct. 1038,

35 L.. Ed. 2d 297.(1973))). “To the extent that [the rape-shield statute] operates to

prevent a criminal defendant from presenting relevant evidence, the defendant’s

ability, to confront adverse witnesses and present a defense is diminished.” (Michigan

v. Lucas, 500 U.S. 145, 111 S. Ct. 1746, 114 L. Ed. 2d 205 (1991)).

The “opening the door” doctrine comprises two doctrines governing the

admissibility of evidence. (State vf Gaudet, 166 N.H. 396, 97 A. 3d 640 (2014))

(quotations omitted). The first doctrine, “curative admissibility”,. applies when

inadmissible prejudicial evidence has been erroneously admitted, and the opponent

seeks to introduce testimony to counter the prejudice. Id. (quotation omitted). The

'■

second doctrine, “specific contradiction”, is more broadly applied to situations in

which one party has introduced admissible evidence that creates a misleading

advantage and the opponent is then permitted to introduce previously suppressed or

otherwise inadmissible evidence to counter the misleading advantage. Id. (quotation

omitted). (State v. Mazzaglia, 169 N.H. 489, 495 (2016)).

The Supreme Court of North Carolina held in State v. Degree, 322 N.C. 302

306 (1988) that if the state “opens the door” to such evidence of the victim’s sexual

conduct with other people the defendant may request a Rule hearing to determine

- the admissibility of otherwise inadmissible evidence in order to impeach the

complainant. “The third exception, [to ‘ Virginia’s rape Shield statute] permits

'evidence of specific sexual conduct if ‘offered to rebut evidence of the complaining

'■ 'witness’s prior sexual conduct introduced by the prosecution’ D If the Commonwealth

opens the door to otherwise inadmissible evidence, the defendant may introduce

contrary evidence over the prosecutor’s objection.” (Commonwealth v. Beverly, 52 Va.

Cir. 255, 257 (2000)).

Even Kentucky’s own Courts have rendered Opinions in contradiction with the

holding in this case. The Kentucky Supreme Court held in Perry v; Commonwealth,

390 S.W. 3d 128 (Ky. 2012), that,

“[i]n any criminal case important constitutional rights are

at stake, including the right to confrontation and due

process, and the defendant’s continued liberty is at issue.

In all criminal cases, the defendant has the right to make

a complete defense. (See Holmes v: South Carolina, 547

U.S. 319, 324, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006)).

In Dennis v. Commonwealth, 306 S.W. 3d 466, 473-474

(Ky. 2010) the Court held that the rules of evidence, of

course, may not be construed so as to' usurp [the right to

confrontation], and thus, although the United States

Supreme Court has emphasized that the state and federal

rule makers have broad latitude ‘to establish rules

excluding evidence from criminal trials,’ United States v.

Scheffer, 523 U.S. 303, 308, 118 S. Ct. 1261, 140 L. Ed. 2d

413 (1998), and that trial judges enjoy wide latitude ‘to

impose reasonable limits on cross-examination based on

concerns about, among other things, harassment,

prejudice, confusion of the issues, the witness’ safety, or

interrogation that is repetitive or only marginally

relevant,’ Delaware v. Van Arsdall, 475 U.S. 673, 679, 106

S. Ct. 1431, 89 L. Ed. 2d 674 (1986), the court has also

declared that that latitude has limits’ ‘whether rooted

directly in the Due process Clause of the Sixth

Amendment, the Constitution guarantees criminal

defendants a meaningful opportunity to present a complete

defense....This right is abridged by evidence rules that

infringfe] upon a weighty interest of the accused and are

arbitrary or disproportionate to the purposes they are

designed to serve’. Holmes v. South Carolina, 547 U.S. 319,

324, 126 s. Ct. 1727, 164 L. Ed 2d 503 (2006) (citations and

internal quotations omitted). ‘Arbitrary’ rules, the Court

explained in Holmes, are those, ‘that exclude D important

defense evidence but that d[o] not serve any legitimate

interests.’ Id at 325. In determining whether an exclusion

is ‘disproportionate’, other courts have weighed ‘the.

importance of the evidence to an effective defense, [and] the

scope of the ban involved,’ White v. Coplan, 399 F. 3d 18,

24, (1st Cir. 2005) (citing Davis v. Alaska, 415 U.S. 308, 94

S. Ct. 1105, 39 L. Ed. 2d 347 (1974) and Van Arsdall,

Supra, against any prejudicial effects the rule was

designed to guard against. Barbe v. McBride, 521 F. 3d 443

(4th Cir. 2008); LaJoie v. Thompson, 217 F. 3d 663 (9th Cir.

2000).’’

In D. W.H. V State 103 So. 3d 850 (2012) the Court of Criminal Appeals of

Alabama reversed and remanded the defendants conviction because the trial court

denied his request to present rebuttal witnesses in response to the testimony of the

State’s witness. In Johnson v. Moore, 472 F. Supp. 2d 1344 (2007) the United States

District Court for the Middle District of Florida, Tampa Division granted an inmates

habeas corpus petition where the Petitioner was denied the right to have compulsory

process for obtaining witnesses in his favor because the State arbitrarily denied him

the right to put his witness on the stand. The Court held that “[t]he Framers of the

Constitution did not intend to commit the futile act of giving to a defendant the right

to secure the attendance of witnesses whose testimony he had no right to use.” Id at

1357.

In People v. Williams, 55 Ill. App. 3d 752 (1977) the Appellate Court of Illinois,

First District, Fourth Division reversed and remanded because the Court violated the

'defendant’s Constitutional rights when it refused to allow the'defense witnesses to

testify. In State v. Colburn, 2016 MT 41 (2016) the Supreme Court of Montana

reversed and remanded where the district court erred in its application of the Rape

Shield Law to exclude evidence the defendant wished to present at trial. In Sussman

v. Jenkins, 636 F. 3d 329 (2011) the United States Court of Appeals for the Seventh

Circuit reversed and remanded with instructions where the Seventh Circuit found

that the defendant’s rights under the Confrontation Clause had been violated.

In State v. Shaw, 312 Conn. 85 (2014)—perhaps the most closely related case

to the case at bar—the Supreme Court of Connecticut reversed the defendant’s

conviction where the defendant’s Sixth Amendment right to present a defense was

violated when the trial court infringed upon the defendant’s right to present evidence

of the alleged victim’s prior sexual conduct. The Court found that the testimony the

defendant wished to present was not barred by the Rape Shield, that the Courts use

of the Rape Shield to preclude defendant from presenting his evidence violated his

Sixth Amendment right to present a complete defense, and that had the evidence

been present the outcome of the trial would have been different.

CONCLUSION

Mr. Hansen has an inviolate right protected by the Sixth and Fourteenth

Amendments to this Country’s Constitution to present a complete defense to any and

all criminal charges he faces and is put on trial for. This inalienable right was violated

when the trial court prohibited his counsel from questioning witnesses concerning

the alleged victim’s sending of nude photos to other individuals after the

Commonwealth opened the door .to this evidence through its. witness. The Court’s

refusal to allow defense counsel to cross-examine the; witness concerning her

testimony and the alleged victim’s,previous sexual conduct barred Mr. Hansen from

presenting a complete defense to the crimes he was charged with committing.

Had the trial court allowed defense counsel to examine the witnesses, counsel .

would have elicited testimony that the alleged victim had for a long period of time .

been in the habit of sending nude photos to multiple people and that she previously

made false allegations that Mr. Hansen had sexually abused her. Mr. Hansen’s

defense that Anna likely sent this photo to him by mistake and that he was

completely unaware that he even possessed the photo would have been accepted by

the jury and he would have been acquitted of that charge.

Counsel would have followed by eliciting testimony regarding the alleged

victim’s previous false allegations against Mr. Hansen which she admitted that she

made up in an attempt to get out of trouble. The jury also would have heard testimony

that Mr. Hansen had recently caught Anna and one of his sons having sex and had

told her mother Sariah. Mr. Hansen’s defense that Anna made up these allegations

to shift attention away from herself and effectively “beat him to the punch” likely

would have been believed by the jury and it is reasonably likely that Mr. Hansen

would have been acquitted on all Counts.

The Opinion of the Kentucky Court of appeals Affirming Mr. Hansen’s

9 • ?«»•'•’

. conviction and finding no error in the trial court prohibiting this line of questioning

comparts from the general holdings of other state courts of last resort as well as other

United States courts of appeals and therefore, Certiorari should be granted in this

case. To allow this violation to go uncorrected would be of no advantage to our judicial

system and would effectively defeat the purpose and design of the system.

“If there is in each state a court of final jurisdiction, there

may be as many different final determinations on the same

point as there are courts. There are endless diversities in

the opinions of men. We often see not only different courts

but the judges of the same court differing from each other.

To avoid the confusion which would unavoidably result

from the contradictory decisions of a number of different

judicatories, all nations have found it necessary to

establish one court paramount to the rest, possessing a

general superintendence, and authorized to settle and

declare in the last resort a uniform rule of civil justice. This

is the more necessary where the frame of government is so

compounded that the laws of the whole are in danger of

being contravened by the laws of the parts” (Alexander

Hamilton, Federalist No. 22, December 14, 1787).

APPENDIX

Motion to Unseal

App. 1-2

V'*

Order Entered November 25, 2020 Denying Motion to Unseal

App. 3-4

Indictment

.App. 5*6

Superseding Indictment

.App. 7*11

Commonwealth’s 412 Motion

App. 12*13

Order Entered November 2, 2018 Excluding 412 Evidence

App. 14*15

Final Judgement Entered January 16, 2019

App. 16-19

Kentucky Court of Appeals Opinion Rendered July 31, 2020..,

App. 20*35

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.