# Petition for Writ of Certiorari — Jenkins v. Indiana

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1994
- **Citation:** 513 U.S. 812

## Text

Supreme Court, U.S.

i. NO. Fi LE D

\
931 8 6 5 MAY 2 3 1994

OFFICE OF THE CLERK

IN THE
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

RICKEY JENKINS,
Petitioner

versus

STATE OF INDIANA,
Respondent

PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF INDIANA

William Van Der Pol Jr.
COUNSEL FOR PETITIONER
P.O. Box 1436
Martinsville, IN 46151
(317) 349-0362

-

QUESTIONS PRESENTED FOR REVIEW

I. Whether the Trial Court’s error in
refusing to permit the Defendant to present
past habitual sexual practices of the
victim as exculpatory evidence violates the
Defendant’s rights under the Compulsory
Process Clause and the Confrontation Clause
of the Sixth Amendment.

II. Whether the Trial Court’s error in
applying the Indiana Rape Shield Statute
I.C. 35-37-4-4 to a deceased victim
violated the Due Process Clause of the
Fourteenth Amendment and the 6th Amendment
Right of Cross-Examination.

III. Whether the Trial Court permitting
the FBI Supervisor to testify concerning
D.N.A. test results, without requiring
antecedent testimony of the Technician who
actually preformed the test, violated

defendant’s Constitutional right of

Confrontation and Cross-Examination of the
Sixth Amendment.

Iv. Whether the Trial Court’s error in
allowing the introduction of the
Defendant’s statements after he had
informed the police that he no longer
wished to speak with them violated the
Defendant’s Fifth Amendment Right against

Self-Incrimination.

ii

Cee sated

LIST OF PARTIES TO PROCEEDINGS

Rickey Jenkins, Appellant
c/o William Van Der Pol Jr.
P.O. Box 1799
Martinsville, Indiana 46151
(317)349-0362

State of Indiana, Appellee
Pamela Carter
Attorney General of Indiana
State Office Building
Fifth Floor
Indianapolis, Indiana 46204
(317)232-6226

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ....-ccccncccsccces i
PARTIES TO THE PROCEEDING ......... iii
TABLE OF CONTENTS) ..cccccccccccscccecs iv
TABLE OF AUTHORITIES ..ccccccccccccs vi
CITATION TO OFFICIAL DECISIONS ...... 1
JURISDICTIONAL GROUNDS) ...-eeeeeecees 1

RECITATION OF PERTINENT STATUTES

AND CONSTITUTIONAL PROVISIONS ..... 2
STATEMENT OF THE CASE) ..ccccccccecces 3
ARGUMENT

I. WHETHER THE TRIAL COURT’S

ERROR IN REFUSING TO PERMIT THE
DEFENDANT TO PRESENT PAST

HABITUAL SEXUAL PRACTICES OF

THE VICTIM AS EXCULPATORY

EVIDENCE VIOLATES THE

DEFENDANT’S RIGHTS UNDER THE
COMPULSORY PROCESS CLAUSE AND

THE CONFRONTATION CLAUSE OF

THE SIXTH AMENDMENT ........222-- 14

II. WHETHER THE TRIAL COURT’S
ERROR IN APPLYING THE INDIANA
RAPE SHIELD STATUTE I.C.
35-37-4-4 TO A DECEASED VICTIM
VIOLATED THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT

iv

AND THE SIXTH AMENDMENT RIGHT
OF CROSS-EXAMINATION ........... 24

III. WHETHER THE TRIAL COURT
PERMITTING THE FBI SUPERVISOR

TO TESTIFY CONCERNING DNA TEST
RESULTS, WITHOUT REQUIRING
ANTECEDENT TESTIMONY OF THE
TECHNICIAN WHO ACTUALLY PREFORMED
THE TEST, VIOLATED THE

DEFENDANT ’S CONSTITUTIONAL RIGHT

OF CONFRONTATION AND CROSS-
EXAMINATION CRCRORORNHO ORO 006400 27

IV. WHETHER THE TRIAL COURT

ERROR IN ALLOWING THE

INTRODUCTION OF THE DEFENDANT’S
STATEMENTS AFTER HE HAD INFORMED
THE POLICE THAT HE NO LONGER

WISHED TO SPEAK WITH THEM

VIOLATED THE DEFENDANT’S FIFTH
AMENDMENT RIGHT AGAINST SELF-
We Sacsbecceaess sc. 32

eect eee LEE TET TET EO Peres ihe 36

Cases

Berger v. California, 393 U.S. 314,
89 S.Ct. 540, 21 L.Ed.2d. 508,

(1969) .ccccccccccccceccecs renee © @ 26,27
Chambers v. Mississippi, 410 U.S. 284,

93 S.Ct. 1038, 35 L.Ed.2d. 297,

Pee so bob ceedonbanehenaneee 17,18,26,27

Commonwealth v. Appenzeller, 44 Crim. L.
Rep. (BNA) 2161 (Pa. Super. Ct., Nov 2,
1988), withdrawn Jan. 17, 1989, but see
46 Crim. L. Rep. (BNA) 1104 (Pa. Super.
Ct., en banc, October 16, 1989) ....... 20

Coy v. Iowa, 487 U.S. 1012, 108 S.Ct.
2798, 101 L.Ed.2d 857, (1988) ....... 29

Davis v. Alaska, 415 U.S. 308, 94
S.Ct 1105, 39 L.Ed.2d 347, (1974) .. 18,19

Green v. California, 399 U.S. 149, 90
S.Ct. 1930, 26 L.Ed.2d 489, (1970) ... 30

Maryland v. Craig, 497 U.S. 836, 110
S.Ct. 3157, 111 L.Ed.2d 666,

(1990) S@e@eeqeeqee@eIe@eqeePteeweteweweeEeeeeeet & eS e S&S 26,30,31

Miranda v. Arizona, 384 U.S. 436,
86 S.Ct.1602, 16 L.Ed.2d 694

(1966) a oo oe. oe. ae ee ee eee ee ee me f F ££ Fe SB re © © 34,35

Olden v. Kentucky, 488 U.S. 227,
109 S.Ct. 480, 102 L.Ed.2d 513,

(1988) ne eeweees et eee et © © © *enerinveeeeeneees # . 19,20

vi

, 483 U.S. 44, 97
S.Ct. 37, 107 L.Ed.2ad 2704, (1987) ... 18

, 121 N.H. 53, 426
OeMPN MND beacccccecccecna, » 21,22

, 558 A.2d 706, (Me.
7s Geie MEY Rebun és Oe é cic daca eevee 22,23

, 148 Wis.2d 190,
434 N.W.2d 807, nN 66btenb ed ned a 20,21

, 756 F. Supp. 1137,
(N.D. of POE MED wtécenianeedecans 25

, 3 F.3d. 1133, (7th.
Cif ss 1993) eeeeeeeeeeeees eseeees fee @ @ «© 23

, 388 U.S. 14,
87 S.Ct. 1920, 18 L.Ed.2d. 1019,

(1967) PM TSER PEP PT YY eee -- 16,17,18
U.S. Constitution, Amendment VI ..... 28

Other Authorities
J. IMWINKELRIED, EXCULPATORY EVIDENCE,

(1990) ~ = @ OPPO AORIEOH6666 66 OBE oe 16

P. WESTEN,
CLAUSE, 73 MICH. L. REV. 71 (1974) ... 16

\ ae

vii

CITATION TO OFFICIAL REPORT OF OPINIONS

indiana Supreme Court:
627 N.E.2d 789

caine bend cs
San ieee coe ae
Re-Hearing:

627 N.E.2d 789

JURISDICTIONAL GROUNDS FOR WRIT OF CERTIORARI

Dat ; ) . decial . t] Indi
Supreme Court:

December 20, 1993

Hearing:

March 1, 1994

review:

28 U.S.C. § 1257

VERBATIM RECITATION OF PERTINENT STATUTES
AND CONSTITUTIONAL PROVISIONS
I.C, 35-37-4-4
(verbatim reproduction contained in
Appendix)
nite nt V

(verbatim reproduction contained in

Appendix)
United States Constitution, Amendment VI
(verbatim reproduction contained in

Appendix)
nited Stat LO Vv

(verbatim reproduction contained in

Appendix)

STATEMENT OF THE CASE

On September 16, 1991, the body of a
young lady was found in a ditch in northern
Morgan County. (R. 2906). Numerous
injuries were apparent on the victim, and
there was blood, hair and a tire track in
the gravel roadway. (R. 2906-2910, 2913).
Upon raising the shirt of the victim, a
bruise in the form of a tire track was
observed across the abdomen of the victim.
(R. 2918).

After a news broadcast from the scene
describing the young lady, the young lady
was tentatively identified as Jennie
Whitman via a telephone call from her
mother, Caroline Whitman. (R. 2929).
Detectives Lang and Betts went to the home
of the victim in Indianapolis, and

interviewed the mother. (R. 2932). The

mother indicated that she had not seen her
daughter since the preceding evening. (R.
2933). Caroline Whitman indicated that the
victim had fled from her car, and that she
assumed that she had gone to see the
Defendant and his girlfriend, Alene Kingery
since she had indicated a desire to speak
with them without Caroline being present.
(R. 2935).

Caroline further indicated that a
number of telephone calls had occurred
during the early morning hours with the
defendant concerning her daughter. (R.
2936). In one of the conversations,
Caroline indicated that the Defendant had
said that he had dropped the victim off at
Starvin Marvin, a gas station near the
victim’s home. (R. 2940).

The Detectives then went to the

Defendant’s home to interview the Defendant

i 9 LEER

and Alene Kingery. (R. 2956). During this
interview, the Alene indicated that the
victim had arrived at her home at
approximately 9:30 P.M. and that she and
the defendant had dropped the victim off at
the Starvin Marvin at approximately 10:30.
(R. 2960-2962). Alene further stated that
she, the defendant, and Caroline had
searched for the victim for a number of
hours on the preceding evening and early
morning. (R. 2967).

The Detectives then interviewed the
Defendant. (R. 2971). The defendant told
a story similar to that of Alene. (R.
2972-2976). Detective Lang then inspected
the Defendant’s vehicle to see if the tire
tread matched the bruising that he had
observed on the body of the victim. (R.
2981). Upon looking at the car, he

observed a reddish substance on the left

=

rocker panel of the car which he believed
to be blood. (R. 2982).

Defendant was then advised of his
Miranda rights. (R. 2983). The officers
then believed the Defendant to be a
suspect. (R. 2984). The defendant
consented to a search of his car. (R.
2986). Detective Lang then left the car to
speak with the Prosecutor, and at that
point the defendant was handcuffed. (R.
2989). While Detective Lang was on the
telephone, the defendant indicated to
Detective Betts that he no longer wished to
talk to the police. (R. 2996).

In the presence of the Defendant, the
detectives negotiated a consent to search
the home with Alene and her. mother.
(R.3001). The defendant first objected to

the search, but after the police were able

to secure permission from Alene and her

mother, he was persuaded to consent. (R.

3001-3003). The search netted a pair of
tennis shoes, a baseball cap, and clothes.
(R. 3002-3005).

The officers then went to interview
additional witnesses with the defendant in
the back seat of the car. (R. 3008,
3023). The officers and the defendant had
a conversations on a variety of subjects.
(R. 3025). Detective Lang finally
requested the defendant to decide if he
still wished.to no longer talk with then.
(R. 3026). The defendant then agreed to
talk to the police. (R. 3026). The
defendant was not re-Mirandized. (R.
3026). The officers then questioned the
Defendant about the blood on the car. (R.
3028). The defendant indicated that he

believed that the blood had come from when

the victim had been helping him fix his car

on the preceding Saturday. (R. 3028).

While investigating an_ unrelated
automobile personal injury accident, the
defendant was handcuffed. (R. 3043). The
defendant was then transported to the
Morgan County Jail where two taped
statements were taken from the defendant.
(R. 3046-3048).

In interviewing additional witness,
the officers learned that the victim had
engaged in sexual relationships
approximately 72 hours before her death
with her boyfriend, Charles Mathews. (R.
3339).

On September 17, 1991, the Court
granted a Search Warrant for the
defendant’s vehicle (R. 6219), and for the
defendant’s person. (R. 586).

Defendant filed his Offer to Prove

Pursuant to I.C. 35-37-4-4, (Appendix p.47-

eK

49} Brief in Support, (Appendix p. 50-71),
(see also, Brief of Appellant, Sections v
through IX); along with the deposition of
Charles Mathews. (R. 832, 1010); (Appendix
p. 75). The court, after hearing excluded
all evidence of past sexual relationships
of the victim except for the specific
instance with Mathews which occurred on
Thursday. (R. 706); (Appendix Pp. 72-74).

On February 25, 1992, defendant filed
his Motion to Suppress DNA evidence
Claiming that introduction of the evidence
would violated his rights of confrontation
and cross-examination. (R. 7O2A, 4249-
4250); (Appendix p. 76-78). The State
admitted that the F.B.I. refused to make
its technician, who conducted all of the
steps of the DNA testing procedure except

for the analysis of the results, available

to testify at trial. (R. 4254-4255). The

court, after hearing, denied defendant’s
Motion. (R. 4403); (Appendix p. 79-81);
(see also, Brief of Appellant, Sections I
through IV).

On March 30, 1992, the trial began.
(R. 7). At trial, the State offered the
tape statements of the defendant. (R.
8083, 8175). The defendant objected to
their introduction on Fifth Amendment
grounds. (R. 10390-10391); (Appendix p.

82-83); (see also, Brief of Appellant,

Section X). The court, after a hearing out

a

of the presence of the jury admitted the
tapes over the objection of the defendant.

(R. 8083, 8187); (Appendix p. 82).

During trial the defendant sought to
produce evidence of past sexual activity of
the victim as exculpatory evidence. (R.
7896-7898). The court refused to admit the

testimony. (R. 7898).

10

|

During trial, the State offered
results of DNA tests. (R. 8672).
Defendant objected to such results on the
grounds that the failure of the State to
present the technician who had conducted
the tests violated defendant’s rights of
confrontation and cross-examination. (R.
8579). The court denied defendant’s
objections. (R. 8592).

During trial, defendant presented two
expert witnesses which disputed the
reliability of the DNA testing results (R.
9528-9583, 9190-9271). along with the
National Academy of Sciences Report which
was critical of the methodology employed by
the FBI. (R. 9817-9930). Dr. Mueller
testified as to the great controversy in
the scientific community on the issue of
population genetics. (R. 9873-9883, 9132,

8980). He further testified ws to a

11

potential 2% false positive rate in the DNA
testing procedure. (R. 9570).

Dr. Randall Libby testified as to
potential errors which could have been made
by the technician that the supervisor would
not be able to detect after the fact. (R.
9432, 9434-9435). He further testified as
to a potential error in the Q-6 semen
sample in this case which could only be
refuted by the technician who conducted the
test. (R. 9526-9527).

At the conclusion of the trial, the
jury found the defendant guilty on all
counts. (R. 1060123). The court then
conducted a Habitual Criminal Trial, and
the jury found the defendant guilty of
being a habitual criminal. (R. 10321).

At sentencing, the court sentenced the
defendant on Count I, Murder to a term of

sixty (60) years, enhanced by a thirty (30)

12

year term for being a habitual criminal.
(R. 10-11). This term was consecutive to
Count IV, Rape, upon which the defendant

was given a twenty (20) year term. (R. 10-

11).

13

I. WHETHER THE TRIAL COURT’S ERROR IN
REFUSING TO PERMIT THE DEFENDANT TO PRESENT
PAST HABITUAL SEXUAL PRACTICES OF THE
VICTIM AS EXCULPATORY EVIDENCE VIOLATES
DEFENDANT’S RIGHTS UNDER THE COMPULSORY
PROCESS CLAUSE AND THE CONFRONTATION CLAUSE

OF THE SIXTH AMENDMENT

In this case the defendant sought to
introduce evidence that the victim often
engaged in consensual sexual activity while
partially clothed. (R. 7896-7997). The
deposition of Charles Mathews, Exhibit 408,
was proffered under I. C. 35-37-4-4 and
included his testimony that the victim
often had sex while partially or fully

clothed. (R. 7950).

14

It is important to note that the case
against the defendant on the charges of
Rape and Child Molesting is entirely
circumstantial. One of the cornerstones of
the state’s case on these charges was
succinctly stated by the Prosecutor during
Final Argument:

There was no reason for Jennie

Whitman’s clothes to be the way they
were unless, of course, it was forced.

(R. 9995). see also R. 7896-7897.

In making such a statement, the State
was inviting the jury to make a false
assumption; that the victim would not
engage in consensual sexual activity unless
she disrobed. This was not in fact the
case. The only evidence before the court,
which the defendant sought to introduce to
rebut the erroneous inference, was that the
victim did in fact engage in consensual

sexual activity while partially clothed.

15

(R. 7950). To allow the State to invite a
false conclusion, and then to allow the
State to hide behind the Rape Shield
Statute is particularly problematic.
Failure to allow such evidence limited
the defendant’s rights to present
exculpatory evidence. "The history of the
accused’s right to present a defense,
including the right to introduce evidence,
‘is the story of the development of the
adversary process and the demise of the

inquisitorial method." J. Imwinkelried,

; — Evid 07. (1990) (citi )
Westen, The Compulsory Process Clause 73
Mich. L. Rev 71, 177 (1974). Additionally,

the United States Supreme Court has held
that the Fourteenth Amendment guarantees of
Due Process incorporates the Compulsory

Process guarantees of the Sixth Amendment.

Washington v. Texas, 388 U.S. 14, 87 S.Ct.

16

1920, 18 L.Ed.2d. 1019, (1967). In writing

for the Court in that decision, Chief
Justice Warren further asserted that an
accused has a constitutional right to
present witnesses to establish a defense,
as a part of his compulsory process
guarantee. Id. at 19.

The doctrine set forth in Washington,
po. was extended to technically
inadmissable hearsay evidence in Chambers
v. Mississippi, 410 U.S. 284, 93 S.Ct.
1038, 35 L.Ed.2d. 297 (1973), when the
Court found that although the proffered
evidence sought to be admitted did not fit
within the state’s hearsay doctrine, the
testimony was so reliable and crucial that
it’s exclusion violated the principles of
Washington. Further, it found that the
right precluded trial judges from

mechanistically applying evidentiary rules

17

to preclude reliable, and vitally necessary
defense evidence. Id. at 302-303; see e.g.,
Rock v. Arkansas, 483 U.S. 44, 97 S.Ct. 37,
107 L.Ed.2d. 2704, (1987).

Although in Washington, 388 U.S. 44,
87 S.Ct. 1920, 18 L.Ed.2d. 1019, (1967),
the Court relied on the compulsory process
Clause as a source for the accused’s
constitutional right to present evidence,
the Court has also used the confrontation
Clause to support that right. In Davis v.
Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39
L.Ed.2d. 347, (1974), the issue related to
evidence of a witness’ past juvenile
record, something which was considered
confidential by state statute. The
defendant sought to admit this evidence so
show possible bias on the part of the
witness. While the Court conceded that the

State’s interest in maintaining the

18

confidentiality of juvenile proceedings was
legitimate and important, on the facts of
the case, the Court concluded that
exclusion of the evidence violated the
accused’s confrontation right, which was
paramount, despite the state’s lawful
interest.

Davis, Id., was reaffirmed by the
Court when it decided Qlden v. Kentucky,
488 U.S. 227, 109 S. Ct. 480, 102 L.Ed.2d.
513, (1988). In Olden, the defense sought
to admit evidence supporting its theory
that the white complaining witness had
fabricated a rape charge against the black
defendant to protect her romantic interest
with another black man. At trial the
evidence had been excluded because of the
risk that the jury would improperly reject

her testimony because of bias = about

interracial relationships. The Court found

19

that exclusion of this testimony was
constitutional error, citing to Davis, 415
U.S. 308. Olden, 488 U.S. at 231.

In Commonwealth v. Appenzeller, 44
Crim. L. Rep. (BNA) 2161 (Pa. Super. Ct.,
Nov. 2, 1988), withdrawn Jan. 17, 1989, but

see, Commonwealth v. Appenzeller, 46 Crim.
L. Rep. (BNA) 1104 (Pa. Super. Ct., en

banc, Oct. 16, 1989), the court did find
that the accused’s confrontation right
prevailed over the rape shield
proscriptions. The court made its decision
by finding that the accused’s
constitutional right to introduce evidence
of the young complainant’s sexual activity
to dispel any improper inference by the
jury about her knowledge of sexual matters,
was warranted.

Similarly, in State v. Pulizzano,
(1988), 148 Wis. 2d 190, 434 N.W.2d 807,

20

the court utilized Davis, 415 U.S. 308, and
accepted the defense argument for admission
of this type of evidence, after balancing
the policy supporting the Rape Shield Law
against the defendant’s need for the
evidence. Pulizzano, 434 N.W.2d at 812.
The court found that the accused should be
permitted to conduct "limited inquiry into
the prior sexual assault for the purpose of
negating the inference that M.D.’s sexual
knowledge was gained from the alleged
assault by Pulizzano." 14. -@& .612,. .3m
spite of the proscriptions of a Rape Shield
Law which were very similar to those of
Indiana.

A New Hampshire court ruled in accord
with Wisconsin, in State v. Howard, (1981),
121 N.H. 53, 426 A.2d 457, a case involving
statutory rape, when it found that the

defendant’s confrontation right precluded

21

that judge from automatically barring
defense evidence of the sexual knowledge of
the complaining witness. In reaching it’s
decision, the court noted that average
jurors would probably assume that a twelve
year old girl was sexually innocent, and
therefore it was probable that they would
believe that unless the offense charged
occurred, she would not have this
knowledge. Id. at 462.

A similar holding was also made by the
court in State v. Jacques, (1989), Me., 558
A.2d 706, where the court noted that the
Rape Shield Law and the policy underlying
it "must be weighed against the defendant’s
constitutional right of effective cross
examination and to present a= proper
defense". in. a YWers The court
additionally concluded that it was a matter

of constitutional right that "Ta]

22

defendant. . . must be permitted to rebut
the inference a jury might otherwise draw
that the victim was so naive sexually that
she could not have fabricated the charge”.
Id. Furthermore, the court added that "[a]
number of jurisdictions have recognized the
accused’s constitutional right to surmount
Rape Shield Law "for the limited purpose of
rebutting the jury’s natural assumption
concerning a child’s sexual innocence. . .
*.. we

Finally, the 7th Circuit Court of
Appeal recently ruled that the Indiana Rape
Shield Statute unconstitutionally violated
a defendant’s right to present exculpatory
evidence in the case of Tague v. Richards,
3 F.28@- 1133,.- (32993). This is the exact
same argument presented in this case.

The evidence offered was. highly

reliable in that the evidence came from the

~

23

boyfriend of the victim, a witness adverse
to the defendant. Failure of the court to
allow the defendant to present exculpatory
evidence of this nature violated
defendant’s constitutional rights,

requiring a reversal of his convictions.

II. WHETHER THE TRIAL COURT’S ERROR IN
APPLYING THE INDIANA RAPE SHIELD STATUTE TO
A DECEASED VICTIM VIOLATES THE DEFENDANT’S
DUE PROCESS RIGHTS OF THE FOURTEENTH
AMENDMENT AND THE CROSS-EXAMINATION RIGHTS

OF THE SIXTH AMENDMENT.

In this case, the defendant sought to
present evidence of the past sexual history
of the victim to rebut the inference that
the state of the victim’s clothes would be
inconsistent with consensual sexual

relations. (R. 7896-7898). The Trial Court

24

ruled such evidence inadmissable. (R.

7898).

Not allowing the defendant the right
to present evidence of this nature is
particularly troublesome where the
exclusion of such evidence is not violative
of the underlying premise of the Rape
Shield Statute; the protection of the
victim while testifying, of embarrassment
or harassment, or the fear that the
introduction of such evidence would reduce
the likelihood that the victim would report
such an offense. Stephens v. Morris, 756
F.Supp 1137, (N.D. Ind., 1991). Absent a
reasonable rationale for excluding what was
extremely probative evidence which tended
to rebut an erroneous conclusion, there was
no good reason for excluding the evidence.
In addition, the refusal to allow this

evidence violates the doctrine set down in

25

ruling precedents of the U. S. Supreme
Court which prohibits the barring of
relevant, reliable defense evidence under
the rubric of technical evidentiary rules.
Chambers v. Mississippi, 410 U.S. 284, 93
§.Ct. 1038, 35 L.Ed.2d. 297, (1973).

In Chambers, this court stated:

The right of an accused in a
criminal trial to due process is, in
essence, the right to ae fair
opportunity to defend against the
State’s accusations. The rights to
confront and cross-examine witnesses
and to call witnesses in one’s own
behalf have long been recognized as
essential to due process.

Chambers at 295.

The right to confront and cross-
examine is not absolute and may bow. in the
proper case, to other legitimate interests
in the criminal trial procedure. Berger v.
California, 393 U. S. 314, 89 S. Ct. 540,
21 L. Ed. 508, (1969); Maryland v. Craig,

497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d.

26

666, (1990).

However, the denial or significant
diminution of this right undermines the
integrity of the fact finding processes and
requires a close examination of the
compelling state interest. Berger v.

lif ia; Cham wiasiesinni .

In this case, there is no compelling
state interest to be served in the
exclusion of this evidence where the victim
is deceased. Not allowing the defendant to
present such evidence to rebut an incorrect
inference, where there is no countervailing
reason to the contrary, violated the
Defendant’s Due Process Rights of the
Fourteenth Amendment and Cross-Examination

Rights of the Sixth Amendment.

Iil. WHETHER THE TRIAL COURT ERROR

PERMITTING THE F.B.I. SUPERVISOR TO TESTIFY

27

CONCERNING DNA TEST RESULTS, WITHOUT
REQUIRING ANTECEDENT TESTIMONY OF THE
TECHNICIAN WHO ACTUALLY PREFORMED THE TEST,
VIOLATED DEFENDANT’S CONSTITUTIONAL RIGHT
OF CONFRONTATION AND CROSS~-EXAMINATION

GUARANTEED BY THE SIXTH AMENDMENT.

Amendment VI of the U. Ss.
Constitution states:
In all criminal prosecutions, the
accused shall enjoy the right to. .
- be confronted with the witnesses
against him;

The State’s failure to present the
technician who performed the "hands on"
portion of the DNA testing procedure,
denied the defendant the right to confront
and cross-examine the adverse witness as to
the exact methodology used in conducting

the tests. The evidence before the court

was that the DNA analysis was conducted by

28

a two person team at the F.B.I. (R. 8724-
8735). Technician Rich Deeter, who was not
called to testify conducted Sections I-XIV
of the protocol, which consisted of the
actual manipulation of the samples
themselves to produce the autorads. (R.
8724-8735). Supervisory Agent Robert
Coffin, who was called as a witness by the
State conducted Section XV of the protocol
which is a statistical analysis of the DNA
testing procedure which was done by Deeter.
(R. 8724-8735).

This Court has observed that, " the
Confrontation Clause guarantees the
defendant a face-to-face meeting with
witnesses appearing before the trier of
fact." Coy v. Iowa, 487 U.S. 1912 at 1016,
102 S.Ct 2798 at 2800, 101 L.Ed. 857,
(1988). This Court has previously visited

the question of the degree to which the

29

Confrontation Clause requires direct, face-

to-face confrontation of 3a witness.

Maryland v. Craig, supra. The right of

confrontation:

(1) insures that the witness will give
his statements under oath - thus
impressing upon him the seriousness of
the matter and guarding against the
lie by the possibility of a penalty for
perjury; (2) forces the witness to
submit to cross-examination, the
"greatest legal invention ever invented
for the discovery of truth"; [and] (3)
permits the jury that is to decide the
defendant’s fate to observe’ the
demeanor of the witness in making his
statement, thus aiding the jury in
assessing his credibility.

Green v. California, 399 U.S.149 at 158, 90
S.Ct. 1930 at 1935, 26 L.Ed.2d 489, (1970).

In this case, the Defendant presented
evidence that an error by Mr. Deeter may
have occurred during the testing procedure
with the critical Q6 female specimen. Any
number of potential errors might have been

committed by Mr. Deeter resulting in the

30

anomalous Q6 female result. Only Mr.

Deeter could be adequately confronted and
cross-examined about this test since only
he would have knowledge of the exact
procedure employed by his in this case, and
the likelihood that an error consistent
with the Q6 result had occurred.

The State presented no compelling
interest in failing to present Mr. Deeter
making the rights of the Defendant to
adequate confrontation and cross-
examination bow to legitimate necessity of
the criminal trial procedure. Maryland v.
Craig, 110 S. Ct at 3166.

Failure to present the technician who
performed the tests deprived the defendant
of his rights to confront and cross-examine
adverse witnesses, as provided by the State
and Federal Constitutions. As such, the

court was in error in allowing such

31

testimony into evidence requiring a

reversal on all counts.

IV. WHETHER THE TRIAL COURT’S ERROR IN
ALLOWING THE INTRODUCTION OF THE
DEFENDANT’S STATEMENT AFTER HE HAD INFORMED
THE POLICE THAT HE NO LONGER WISHED TO
SPEAK WITH THEM VIOLATED THE DEFENDANT’S
FIFTH AMENDMENT RIGHT £=AGAINST SELF-

INCRIMINATION.

Early on in the questioning process,
the defendant informed police that he no
longer wished to answer any further
questions. (R. 6495). A variety of
conversations, nevertheless, occurred after
the request by the defendant that he no
longer wished to talk. All of these
conversations and questions with Officers

Lang and Betts occurred without them re-

32

_ owt | ei te

Mirandizing the defendant. (R. 6505-6506).
Several hours thereafter, the
defendant was taken to the County Jail at
which time taped statements were taken from
the defendant after new Miranda warnings.
(R. 6505-6506). These statements (exhibits
126 and 128) were played to the jury over
defendant’s objection. (R. 8083, 8187).
At the time of the original request by
the defendant to cease questioning, the
defendant was placed in the back of the
police car. (R. 6452). He was. then
transported by the pclice officers as they
made the rounds of their investigation and
was asked various questions by the police
officers. (R. 6470-6476, 6486). At some
time during the process, the conflicting
evidence was that the defendant was placed
in handcuffs when the officers had to

investigate an unrelated traffic accident.

33

(R. 6487).

In this case, the defendant informed
the police that he no longer wished to talk
to them. (R. 6495). Shortly thereafter
the police were able to persuade him to
consent to a search of his residence, (R.
6504-6505) and thereafter were able to get
two tape recordings after new Miranda
warnings. (R. 6505-6506). These statements
(exhibits 126 and 128) were played to the
jury over the objection of the defendant.
(R. 8083, 8187).

In Miranda v. Arizona, 384 U.S. 436,
86 S.Ct. 1602, 16 L.Ed.2d 694, (1966),
Once warnings have been given, the
subsequent procedure is clear. If the
individual indicates in any manner, at
any time prior to of during
questioning, that he wishes to remain
silent, the interrogation must cease.
At this point he has shown that he
intends to exercise his Fifth Amendment
privilege; any statement taken after

the person invokes his privilege cannot
be other than the product of

34

compulsion, subtle or otherwise.

Miranda, 384 U.S. at 473.

The extent to which the right

continues is judged upon a standard of
whether his exercise of the right has been
"scrupulously honored". A simple review of
the actions of the officers in this case
shows that they, by subtrafuge, indivect
coercion, and questioning, were able to
convince the defendant to allow them to
resume questioning. These actions do not
rise to the level of a "scrupulously
honored" right making the introduction of
the statements a violation of Defendant’s

Fifth Amendment rights.

CONCLUSION

Based upon the foregoing, the
Petitioner respectfully requests this Court

to grant Certiorari to decide the important

x

Federal Questions presented, and to clarify

conflicting decisions of the lower courts.
Respectfully submitted,
William Van Der Pol, Jr.

P.O. Box 1799
Martinsville, IN. 46151

Counsel for Petitioner

36

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1596%3A1. Public record. Not legal advice.