Opposition Brief — Dreiling v. Kansas

“4 “Trame Gourt, U.S.

No. 02-982 i, # D

£6925 205

In The CLERK

Supreme Court of the United States

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MIKEL J. DREILING, - —

Petitioner,

STATE OF KANSAS,

Respondent.

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On Petition For Writ Of Certiorari

To The Supreme Court Of Kansas

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RESPONDENT’S BRIEF IN OPPOSITION

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CHRIS BIGGS

Geary County Attorney

801 N. Washington, Suite A

Junction City, Kansas 66441

(785) 762-4343

Counsel of Record for Respondent

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED FOR REVIEW

WHETHER THE PETITIONER'S FIRST AMENDMENT

RIGHT TO THE FREE EXERCISE OF HIS RELIGION

WAS VIOLATED WHEN EVIDENCE PERTAINING TO

HIS RELIGIOUS BELIEFS AND PRACTICES WAS

ADMITTED AT TRIAL TO SHOW MOTIVE TO COMMIT

MURDER.

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LIST OF PARTIES

Mikel J. Dreiling, Petitioner; State of Kansas, Re-

spondent.

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CORPORATE DISCLOSURE

There are no parent corporations involved, and there

are no publicly held companies involved, pursuant to Rule

29.6.

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TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW. ................ i

Renee C2 PURMCE SID sosvinvanssesunsscnenstsnserevoxsunnsnsnsscunwennss ii

CORPORATE, DISCLOSURE. o.ccscsssvsccsessscesvesessestvees iii

RE ST TE ir skies ae tincsnricteininiiaiidininas iv

Rae OE BEF RINE BIN cone iesecscrsennvevencninesepesnenenes Be .

See EEE, SN iiccvcevninindiicconsisesinncaiinensbaduendnniubendin 1

IE initesiksistlindeailevnieiiaedesinvedblbapacaniapwaaaten 1

CONSTITUTIONAL AND STATUTORY PROVI-

EE HO TE Si ccenskiksneendonsnnakiasuciieccucbicebnaiaes 1

STATEMENT OF THE CASE..................ccseeeecesseeeees 1

REASON WHY THE PETITION SHOULD BE

TED ssicacinepvitvjaenisisuvneuateinccideancueieaeiniaenatiias 16

THE ADMISSION OF EVIDENCE RE-

GARDING THE PETITIONER’S RELI-

GIOUS BELIEFS AND PRACTICES WAS

RELEVANT TO ESTABLISH MOTIVE FOR

MURDER AND THE CASE PRESENTS

ONLY AN ISSUE OF APPLICATION OF

Re EOE GUT crnsnnetasccissebienentanenstaaeees 16

SIE cosavenininiesiainntinndieneceniuuianinninomannann 22

TABLE OF AUTHORITIES

Page

CASES

Aliwoli v. Carter, 225 F.3d 826 (7th Cir. 2000), cert.

denied, 531 U.S. 1167, 121 S.Ct. 1129 (Mem), 148

L.Ed.2d 995, 69 USLW 3354 U:S. (2001)......................417

Barclay v. Florida, 463 U.S. 939, 103 S.Ct. 3418, 77

i TE Se CED hickicieisccnesccerasdecesdtcameiemeinatekonicniunies 16

Bolling v. Superior Court for Clallam County, 16

Wash.2d 373, 133 P.2d 803 (1943) ............c.ccccssssscoreseees 17

Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13

a Me MEINE 5 BEI iccaccrsncstansisdnsientishsimmbsionsaieieacotmatnaneainns 17

Dawson v. Delaware, 503 U.S. 159, 112 S.Ct. 1093, ,

SAT Fi ee le 6 ctivvinceliaininmts 16, 19

People v. Cooks, 141 Cal.App.3d 224, 190 Cal.Rptr.

BED, Ck Rien, 3 IR Cae tkeecsecsctsretecnsneecessvineennncs 18

People v. Manson, 61 Cal.App.3d 102, 132 Cal.

Rept. 265, Cal.App. 2 Dist. (1976); cert. denied,

430 U.S. 986, 97 S.Ct. 1686 (Mem), 52 L.Ed.2d

382; cert. denied, 435 U.S. 953, 98 S.Ct. 1582

(Mem), 55 L.Ed.2d 803 (1978)...........ccccccsccossssscesessecsvooes 18

State v. Dreiling, ___ Kan. ___, 54 P.3d 475 (2002) ...1,2, 15,21 —

State v. Flynn,__ Kan. __, 55 P.3d 324 (2002)................ 1

State v. Leitner, 272 Kan. 398, 34 P.3d 42 (2001).............. 19

State v. Potter, 197 W.Va. 734, 478 S.E.2d 742

Cee cisisinrsincistinsiinsie'stnistnicensitmnaibaceahglaeiaiiacieiciadimamenatanatdaiaaaaaitiaie 19

State v. Ryan, 233 Neb. 74, 444 N.W. 2d 610 (1989);

cert. denied, 498 U.S. 881, 111 S.Ct. 216, 112

L.Ed.2d 176 (1990); cert. denied, 529 U.S. 1100,

120 S.Ct. 1836 (Mem), 146 L.Ed.2d 780 (2000)............. 18

vi

TABLE OF AUTHORITIES — Continued

Page

State ex. rel. Holcomb v. Armstrong, 39 Wash.2d

te: ae Sams SIE © IED sxecuntiascsiinacoiacincersesinionseainusacvoanns 17

United States v. Abel, 469 U.S. 45, 105 S.Ct. 465, 83

Ne Ie © I saracccnsnendeisiastasedniandnnentmennanaiiend 16.

United States v. Barlow, 41 F.3d 935 (5th Cir. 1994)........ 18

United States v. Beasley, 72 F.3d 1518, 43 Fed. R.

Evid. Serv. 728 (Lith Cir. 1006) ......c.ccscscsssccssescscossoseesees 17

United States v. Perl, 584 F.2d 1316 (4th Cir. 1978)......... 17

United States v. Sun Myung Moon, 718 F.2d 1210

(2nd Cir. 1983) cert. denied, 466 U.S. 971, 104

S.Ct. 2344, 80 L.Ed.2d 818 (1984) ............ ee eeeeceeeeee eee 18

STATUTES

ETE INIEIL, “AIT cnn icainheictcnsncinvdndaachacanicisbiagicbeeniasaiaimabdimabcdiauaiis 1

OTHER AUTHORITIES

U.S. Constitution, Amendment I...................0000008 a ee

1

OPINION BELOW

State v. Dreiling, __. Kan. ___, 54 P.3d 475 (2002). See

also, companion case, State v. Flynn, ___ Kan. ___, 55 P.3d

324 (2002)

¢

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JURISDICTION

The Judgement of the Supreme Court of Kansas was

entered on September 27, 2002. Petitioner invokes this

Court’s jurisdiction under 28 U.S.C. 1257(a).

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CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. CONST., AMEND. I

Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise thereof; or

abridging the freedom of speech, or of the press; or the

right of the people peaceably to assemble, and to petition

the Government for a redress of grievances.

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STATEMENT OF THE CASE

After an eight-week joint trial in Geary County,

Kansas (47, 2627, 15; 3, 741), a jury convicted the peti-

tioner, Mikel J. Dreiling, and his sister, Dana Linn Flynn,

in November of 1996 of Murder in the First Degree (con-

trary to K.S.A. 21-3401), Conspiracy to Commit Murder in

the First Degree (contrary to K.S.A. 21-3302 and K.S.A.

21-3401), and Conspiracy to Commit Perjury (contrary to

K.S.A. 21-3302 and K.S.A. 21-3805). The petitioner was

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also convicted of Criminal Threat (contrary to K.S.A. 21-

3419). (76, 8970, 1-25; 8971, 1-13) The Kansas Supreme

Court upheld petitioner’s convictions on September 27,

2002. State v. Dreiling, ___ Kan. __, 54 P.3d 475, 500

(2002). Petitioner seeks review.

The Custody Battle and Sexual Abuse Allegations

The case involved a custody dispute between Dana

Flynn and the victim, Randall Sheridan. A brief affair

between Dana Flynn and Randall Sheridan produced a

child, A.S., born in August of 1985. Sheridan received joint

custody of A.S. (55, 4615, 3-10)

In July of 1989, an allegation of sexual abuse was

made against the victim by Dana Flynn concerning A:S.

(49, 3255, 11-12) Sheridan continued to have visitation

with A.S. but his relationship with Dana Flynn became

further strained. On July 31, 1989, Dana Flynn was sent a

“notice of action” by Social and Rehabilitation Services

(S.R.S.) that this first sexual abuse allegation was “un-

founded.” (56, 4931, 18-22; 79, State’s exhibit #49) Dana

Flynn was also notified by investigators that there was a

concern that A.S. had been coached. (56, 4867, 14-17; 4960,

1-5) The custody battle escalated. (49, 3256, 16-22)

The “Fountain of Life” Church and Prophecies

Dana Flynn had married Steve Flynn in November of

1987. (53, 4093, 21) Dana and Steve had a son, J.F. in

January of 1989. (49, 3270, 22-25) Dana and Steve moved

to Salina, Kansas shortly after their marriage. (53, 4094,

6-7) After the marriage, Sheridan was allowed visits three

days a week with AS. (53, 4098, 13-17) Shortly after their

(Oo OQGG0C0™}} OQ)! —— ——_

3

move to Salina, Dana and Steve began attending a church,

called the “Fountain of Life,” led by Jerry Rollins. (53,

4097, 3-5) After the Flynns started attending, Dana Flynn

prompted other members of her family to join, including

her brother Mikel Dreiling. (53, 4103, 22; See also, brief of

petitioner, 2-3) During services, Mr. Rollins spoke in

unintelligible vocalizations. (53, 4099, 22-23; 4102, 1-25)

He stated that this form of speech was called “speaking in

tongues,” which was performed at least every other ser-

vice. (53, 4103, 9-14)

Jerry Rollins claimed that he was an end-day prophet

of God. (63, 6692, 13; 60, 6469, 5; 6473, 7-11) Mr. Rollins

practiced “prophecy” as God would reveal things to him,

and only to him, regarding situations or other people. (63,

6693, 19-22) In late 1987, or early 1988, Jerry Rollins had

a revelation about A.S.’s father, Randall Sheridan, stating

that God had revealed that A.S.’s father was evil and that

the congregation should pray that God would intervene

and that something would happen so that A.S. wouldn’t be

forced to be subjected to every other week visitations with

her father. (63, 6697, 1-25; 6698, 24-25; 6699, 1-4)

In the fall of 1988, Jerry Rollins prophesied that

Sheridan was evil and that in God’s eyes Steve was A.S.’s

father. (53, 4128, 5-7) On a later date, Mr. Rollins gave a

prophesy stating that Sheridan should not have visitation,

because it was not God’s will. (53, 4131, 23-25; 60, 6495,

21-23) He was the source of the allegation that Sheridan

molested A.S. (65, 6978, 16-22; 6798, 4-8; 6980, 1-9)

In November of 1988, Dana and Steve had marriage

difficulty, so they attended counseling with Mr. Rollins.

Dana Flynn believed that God told her that Steve had

been unfaithful. (53, 4144, 7-23) Dana and Steve Flynn

SS Eas ee

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ultimately divorced in June of 1989. (53, 4146, 12-13) After

the divorce, Steve was granted weekend visitations with

his son, J.F. (53, 4152, 22-24)

More Allegations of Abuse

In May of 1992, allegations of sexual abuse against

Sheridan resurfaced. (49, 3268, 1-5; 54, 4520, 25; 4521, 1-

17) Sheridan was upset about the allegations (54, 4535, 3-

4) and brought up his concerns about the “Salina situa-

tion” and the influence of Dana Flynn, Jerry Rollins, and

the “church” over his child. (54, 4535, 5-7; 4553, 20-24) The

custody case was still open at the time of Randy’s death.

(54, 4537, 14-17; 4538, 2-4)

Randy Sheridan was regularly refused visitation so he

obtained court-ordered weekly supervised visitation on

July 30, 1992. (49, 3272, 25; 3273, 1-3; 55, 5070, 4-8)

Sheridan also obtained a court order for evaluations of

A.S. and Dana Flynn, with which Dana Flynn did not

comply. (55, 4631, 18-25; 53, 4632, 1) Sheridan requested

S.R.S. to re-open the sexual abuse file on August 10, 1992.

(56, 4873, 19-21) He also brought orders with him direct-

ing that S.R.S. should supervise visitations. (56, 4874, 14-

22)

On October 20, 1992, the district court found that it

was in the best interest of A.S. to get immediate counsel-

ing, and directed that a custody evaluation be completed.

The counseling was to be completed by Central Kansas

Mental Health Center in Salina and all parties were

directed to abide by all requests of the evaluator. (57,

5072, 22-25; 5073, 1-21)

5

Talk of the Devil

Like Sheridan, Steve Flynn was also concerned about

_ the influence of Rollins and Dana Flynn over his son, J.F.

Beginning in February of 1992, and continuing into

January of 1993, when J.F. was three years old, J.F. made

unusual comments to Steve Flynn, including: “Nanny

nanny boo boo, you serve the devil”; “Grandma serves the

devil”; “Daddy serves the devil”; and, “Hi, you old faggot.”

(53, 4184, 5-10; 4187, 15; 4187, 20; 4189, 15) Flynn taped

some of these comments. (53, 4211, 23-25; 4212, 1-7) He

took J.F. to Vanessa Fechter, a counselor, to verify that J.F.

was not being molested and to verify the “You serve the

devil” comment. (53, 4201, 8-23; 56, 5448, 1-4) Her inter-

views of J.F. started on September 8, 1992, and they met

14 times. (58, 5453, 17-20; 5453, 1-3) J.F. was very open

with Miss Fechter from the period between September and

December of 1992. After the murder, he became very

afraid and adamant that he would not speak of his mother.

(58, 5455, 5-14) Steve Flynn had also contacted S.R.S. (56,

4875, 18-22) and was concerned about physical abuse

(bruises) on J.F., and requested an investigation to address

concerns about Dana Flynn and Jerry Rollins. (56, 4876, 1-

15)

One interview, on December 4, 1992, when J.F. was

three years old, was of particular concern. (53, 4210, 5-10)

J.F. drew a picture of a devil and asked that she not show

the picture to his father, Steve Flynn, because his father

was the devil, and stated that his mother had told him

that. (58, 5449, 4-12; 5453, 21-23; 5458, 1-2) He also stated

that Jerry Rollins did not exist, and the child then hid

under the table and told her that he did not want to talk

about anything else. (58, 5455, 16-25) After the session,

Steve decided not to take J.F. back to Dana Flynn at the

end of the weekend visitation. (53, 4210, 20-25) Steve

_

6

Flynn, like Sheridan, filed for a change of custody and for

court evaluations of Dana Flynn. (53, 4211, 1-9) J.F. also

made a comment to his day care provider on January 5,

1993, after the murder, stating, “I don’t have a dad any-

more. He’s just a devil now.” (62, 6454, 10-13)

Events Immediately Prior to the Murder

Sheridan obtained the additional services of attorney

Robert Pottroff because of his extensive experience in

domestic cases. (49, 3278, 3-11) On November 24, 1992,

Pottroff filed a Motion to Compel Immediate Custody

Evaluation and Motion for Modification of Custody Ar-

rangement. (57, 5122, 7-25; 5123, 12-25; 5124, 1-25; 5125,

1-18; 77, State’s exhibit #55) These motions were set for

hearing on December 8, 1992, at 1:00 p.m. (57, 5127, 17-

23)

On December 1, 1992, Pottroff filed a memorandum in

support of this motion (57, 5129, 12-14), which included a

detailed time line showing Dana Flynn’s failure to comply

with orders and factual allegations, to include J.F.’s

statements to Steve Flynn about Flynn serving the devil.

(77, State’s exhibit #45) Pottroff intended to present

evidence about the church, and Jerry Rollins’ influence. He

had 15 witnesses subpoenaed (and others to appear

voluntarily) which included Steve Flynn and Rollins’ ex-

wife, Lee Anne. (57, 5146, 25; 5147, 1-25)

On December 7, 1992, Mr. Pottroff received a tele-

phone call from Larry Livengood, new attorney for Dana

Flynn, requesting a continuance. (57, 5149, 4-10) The

continuance was granted. (57, 5150, 14-25; 5151, 9-10)

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Also on December 7, 1992, Pottroff asked the court to

issue a restraining order which would prevent A.S. from

coming into contact with Jerry Rollins, with whom Dana

Flynn denied having a relationship. (49, 3282, 10-15) The

court granted the order over objection. (57, 5160, 1-17; 77,

State’s exhibit #56, paragraph 7F) This order placed Dana

Flynn in a situation where she had to choose between her

daughter and Jerry Rollins. This order also included that

Sheridan should not be with A.S. without the company of

another adult. (57, 5161, 9-11)

Further, on December 7, 1992, Steve Flynn was to

return J.F. to Dana Flynn following visitation. Instead,

when Steve Flynn arrived at Dana Flynn’s residence, he

informed her that he was not returning J.F., but would be

filing a motion. (53, 4251, 5-13) Approximately two and

one half hours after Steve spoke to Dana Flynn, she and

her brother, Mikel Dreiling, came to Steve Flynn’s place of

business. (53, 4252, 2-13) He went outside and was ap-

proached by the defendant and Dana Flynn. (53, 4253, 4)

Dreiling yelled and walked very quickly towards Steve

Flynn. (53, 4256, 2-12) The petitioner stated, “I’m going to

see you go down. I’m going to make you go down.” (53,

4257, 14-19) Dana Flynn grabbed her brother’s arm and

said, “Now is not the time.” (53, 4258, 8-12) He then

turned and spit on Steve’s cheek. (53, 4258, 12-13) There

was an independent witness to this incident. (56, 4790-

4837)

On December 11, 1992, there was to be an unsuper-

vised visitation of A.S. at Sheridan’s residence. (49, 3283,

23; 52, 4893, 6-25; 4894, 1-25) Dana Flynn refused visita-

tion as A.S. was crying. (56, 4895, 1-25) Sheridan was

agitated and called Dana Flynn names under his breath.

(56, 4937, 1-18)

8

The following morning, at around 4:00 a.m. on De-

cember 12, 1992, the Sheridans received two telephone

calls at their residence. (68, 7553, 4-7) Judy Sheridan

answered the calls. On the first call, the caller was silent.

On the second call she heard a male voice say the word

“die” or “dead.” (49, 3288, 6-23) Randy Sheridan then took

the phone out of Mrs. Sheridan’s hand and held the phone

to his ear. (49, 3289, 12-16) He said, “Why don’t you grow

up, Mikey?” (49, 3290, 19) He referred to the petitioner as

“Mikey.” (49, 3350, 12-14) Phone records revealed that

these calls were made from the residence of the petitioner.

(68, 7528, 15; 7542, 1-9; 7542, 8-21; 7550, 4-25; 7551, 1-9)

Pottroff had a discussion with Randy sometime between

December 7th of 1992 and December 21st of 1992 concern-

ing a phone call that caused concern to Judy Sheridan.

During this conversation Randy stated to Pottroff, “Never

mind, I can handle Mikey.” (58, 5402, 23-25; 56, 5403, 1-9)

Pottroff knew that Steve Flynn also had an incident with

“Mikel” but was not aware of who he was. (58, 5404, 13-16)

On December 15, 1992, the S.R.S. worker, Judy

Pearce, told Dana Flynn’s newest attorney, Larry Liven-

good, that there was insufficient evidence to proceed on

the second sexual abuse allegation. There was, however, a

concern that emotional abuse existed, and if confirmed by

therapists, Dana Flynn could have the children removed

from her home. (56, 4899, 19-25; 1-4)

On December 16, 1992, Mr. Pottroff filed a motion

requesting the court to require Dana Flynn to appear on

December 21, 1992, and show cause why she should not be

held in contempt of court. (57, 5164, 7-25; 5165, 1-13) The

next-door neighbors of Jerry Rollins had made a videotape

showing that the restraining order concerning Jerry

Rollins and A.S. had been violated. (57, 5166, 15-21)

9

The Sheridans had a visit with A.S. the weekend of

December 18, 1992. The S.R.S. worker picked up A.S. from

Dana Flynn at a restaurant in Junction City. (56, 4908, 9-

16) A.S. was crying. (56, 4908, 17-19) Sheridan then

announced that he had an appointment scheduled for A.S.

in Manhattan, Kansas, with Dr. Edelman, a psychologist.

When they arrived at Edelman’s office, Steve Flynn and

J.F. were also present. (56, 4915, 12-17; 49, 3303, 9-10)

A.S. became very upset, cried, and was fearful when she

saw Mr. Flynn. (49, 3304, 6-9) When A.S. was brought into

the office she was frightened, out of control beyond a

normal temper tantrum, and seemed terrified. A.S.

screamed and directed her rage towards her father. (60,

5937, 25; 5938, 1-15) She stated that he was sent by the

devil, was evil, and that she wanted to be with her mother.

(60, 5938, 11-17) Judy Pearce took A.S. into another room

with Dr. Edelman’s wife, while at the same time Dr.

Edelman spoke with the Sheridans. (60, 5939, 6-13) When

Randy Sheridan began to step into the other room, A.S.

began to scream and said he was evil and if he touched her

she would die. (60, 5941, 14-18)

The Sheridans took A.S. back to Dr. Edelman’s office

on the morning of Saturday, December 19, 1992. (49, 3309,

20-25) A.S. appeared happy, and hugged her father and Dr.

Edelman. (60, 5945, 13-24) Dr. Edelman asked A.S. about

the comments she made the night before about her father

being sent by the devil, she remembered saying them but

stated, “But, it’s not true.” (60, 5988, 20-22)

At the court hearing on December 21, 1992, neither

Dana Flynn nor her attorney appeared. (55, 4638, 1; 4639,

13-17; 57, 5175, 2-14; 49, 3317, 11-18) On the morning of

the December 21, 1992, Dana Flynn’s attorney contacted

Pottroff and indicated he wanted to avoid a court hearing

10

and desired to get something resolved. (57, 5175, 9-14) In

an attempt to resolve matters, Pottroff and Livengood

agreed that Randy could take A.S. on the ski trip planned

for Christmas from December 22, 1992, through January

2, 1993. Thereafter it was to be a fifty-fifty custody ar-

rangement. (57, 5177, 2-6) Under this arrangement,

Sheridan would now have completely unsupervised visita-

tion with A.S. (49, 3283, 2-13) Pottroff placed some stipu-

lations to the arrangements, which included that it be

100% verified that A.S. was not in contact with Jerry

Rollins, and that Dana Flynn would complete the custody

evaluation. If these two requirements were fulfilled,

Sheridan agreed not to file more motions. (57, 5177, 10-25)

Pottroff advised Dana Flynn’s attorney that regardless of

the continuance on December 21, Pottroff was going to

proceed in contempt against Dana Flynn. (57, 5178, 12-15)

Pottroff and Livengood were to arrange the exact pick-up

time and re-delivery time of A.S. for the ski trip the next

morning. (57, 5189, 17-18; 5190, 2-6) There was no evi-

dence that Dana Flynn actually agreed to her counsel’s

representations. In return for Pottroff not objecting to the

requested continuance of the hearing, the Sheridans were

told they would be allowed to take A.S. with them for the

Christmas ski trip. (49, 3320, 6-10) They planned to pick

up A.S. on Tuesday, December 22, 1992, and travel to

Colorado. (49, 3321, 10-17) The specifics of the exchange of

A.S were to be arranged between Pottroff and Livengood.

(49, 3320, 23-24)

On December 22, 1992, Pottroff attempted to make

contact with Mr. Livengood at 8:54 a.m., but was unsuc-

cessful. (57, 5196, 2-4) Pottroff attempted again at 10:27

a.m. and was also unsuccessful. (57, 5197, 10-13)

11

Livengood called Pottroff around noon and explained that

he was having difficulty getting in touch with his client to

work out details. (57, 5202, 3-4) Pottroff advised that his

client was at home awaiting a response. (57, 5203, 4-14)

Livengood spoke to his client around noon. (51, 3704, 19-

22; 3705, 1-15) Sheridan contacted Pottroff between 2:06

and 2:08 p.m. and explained that he was going jogging and

would call back when he returned. (57, 5198, 5-24) He

never called back. (57, 5199, 9-12) As of 2:30 p.m. on the

afternoon of December 22, Pottroff had not received

confirmation from Livengood. (49, 3325, 1-5) Pottroff

recalled that during his discussion with counsel, there was

no debate about return times or stipulations concerning

the ski trip, which was very peculiar in light of the con-

tested history of the case. (57, 5205, 107) Randy called

Judy at work at approximately 2:30 p.m. (50, 3453, 5) At

this time, Sheridan indicated he was going jogging and

would call Mrs. Sheridan back at her workplace at 3:30

p.m. with an update from the attorneys. (49, 3325, 5-8)

When she did not receive a phone call from Mr. Sheridan,

she tried to call home, but there was no answer. (49, 3328,

17-19) Pottroff received a notice that evening that Sheri-

dan was dead. (57, 5200, 16-21; 5200, 24-25; 5201, 1)

The victim was found near his home shortly after 3:00

p.m. on December 22, 1992. (47, 2635, 11; 2636, 1; 2638,

24-25; 2706, 20-21) He had two shotgun wounds to his

torso and three lethal shotgun blasts to his head and neck

area. (47, 2885, 18) He was dressed in jogging attire (47,

2810, 10-14; 48, 2973, 18-19; 47, 2876, 3) His body was

still warm, and the blood at the scene was just slightly

coagulated. (47, 2810, 10-24; 3190, 10-11)

12

The Petitioner Seeks a False Alibi

The petitioner engaged in a well-documented attempt

_to present false evidence of alibi. (61, 6249, 20-24; 62,

6340, 2-4; 6345, 14; 62, 6337, 17-20; 62, 6340, 2-4; 6345,

14; 62, 6341, 13-15; 62, 6348, 18-25; 6343, 1-15; 62, 6379,

13; 74, 8624, 2-9; 8625, 9-25; 8626-8648; 8652, 25; 8653, 1-

15)

There was also an attempt to secure a false alibi for

Dana Flynn. (61, 6249, 10-11; 61, 6249, 20-24; 6250, 22-25;

6251, 1-6; 61, 6251, 11-23; 6254, 22-25; 6255, 1; 77, State’s

exhibit #87; 61, 6260, 3-6; 6261, 6-11; 61, 6256, 2-14; 6259,

17-18; 77, State’s exhibit #85; 61, 6263, 23-24; 61, 6264, 2-

5)

Perjury Concerning Religious Practices

Because of the prophesies given by Rollins that the

victim was a devil and was molesting A.S., the State was

interested in his control over the “church” and other

evidence about such prophesies, by him or Dana Flynn.

Members of the Dreiling family and other present mem-

bers of the church denied that the practices took place

when questioned under oath at investigative and grand

jury proceedings: Jennifer Brock (Dreiling) (63, 6780-6784;

66, 7324-7328); Cheryl Cannfield (63, 6785, 7-24); Brenda

Arveson (63, 6785, 25; 6786, 1-5); and Norman Dreiling.

(63, 6795, 12-18) Past members of the church testified that

the practices did take place. (65, 7102, 25; 62, 6467, 1-9;

65, 7158, 2-8; 7160, 5-23; 63, 6694, 13-25; 6695, 1-2; 64,

6900, 18-19; 6902, 8; 65, 6973, 1-10; 53, 4103, 9-14)

Jesse Dunlap attended the Fountain of Life Church.

The church held Friday evening prayer meetings at Dana

13

Flynn’s house, which Miss Dunlap and her husband

attended only a few times. (64, 6895, 6-18) Dana Flynn

told Miss Dunlap that she was worried because A.S. was

having nightmares after she had visited her father, Ran-

dall Sheridan. (64, 6896, 24-25; 6897, 1-6) When Dana

Flynn and Steve Flynn were divorced, Dana Flynn told

Miss Dunlap that Steve was evil. (64, 6898, 17-25) In the

fall of 1989, Dana Flynn prophesied in church that Stan

Arveson, Miss Dunlap’s youngest brother who was then

married to Brenda Dreiling, would abuse and molest his

daughter, Stacy. (64, 6900, 18-19; 6901, 1-7, 6902, 8)

Lee Anne Miller was married to Jerry Rollins from

1979 through 1992. (65, 940, 9) She moved to Salina,

Kansas with Jerry in 1986. (65, 6940, 19-23; 6941, 1) Jerry

claimed that he was the only prophet for the last days. (65,

6944, 1-2) He used his claim of prophesy to convince

Lucille Johnson, a wealthy widow, to buy a church build-

ing and a home for Jerry Rollins. (65, 6948, 11-22; 6963, 6-

7; 6969, 18-24; 6981, 14-24; 6984, 6-9; 6988, 10-11; 77,

State’s exhibits #92a, #92b, and #92c; 62, 6472, 2-11; 6472,

17-25) A few months after the church building was pur-

chased, Dana Flynn began attending with Steve Flynn and

her family, (65, 6972, 12-13; 65, 6972, 16-17; 62, 6481, 8-

21) which included her parents, Shirley and Norman

Dreiling; her brothers, John, Mikel, and sometimes Steve

Dreiling; and her sisters, Cheryl Cannfield, Sue Phelps

and Brenda Arveson; and their children. (65, 6972, 20-25)

Praying in tongues was practiced when the Dreiling

family attended and it was practiced by Dana Flynn,

Brenda Arveson, Jerry Rollins and Charles Rollins. (65,

6973, 1-10; 62, 6483, 1-13) “Interpretation” occurred when

messages were given in tongues and someone with the gift

of interpretation would interpret in English for those

14

present. Jerry Rollins and Dana Flynn had the “gift.” (65,

6974, 18-25; 6975, 1)

At one prayer meeting at Dana Flynn’s home, a

prophesy was given that Randall Sheridan was very evil,

that Sheridan’s father was the devil, and that “God would

take care of Randy.” (65, 6978, 16-22; 6979, 4-8; 6980, 1-9)

There was also evidence of an affair between Dana

Flynn and Jerry Rollins. In November of 1990, Lee Anna

Rollins, Jerry Rollins’ wife, found a packing slip from an

adult mail order house. It listed items ordered by Jerry

Rollins and sent to the residence of Dana Flynn. (59, 5643,

8-25; 5644, 5-9; 5689, 12-24; 79, State’s exhibit #64b, #64;

66, 7199, 19-24) In February of 1992, Lee Anna hired an

attorney to represent her in divorce proceedings against

Jerry Rollins. (65, 7002, 17-20) She gave a copy of the

invoice to her attorney to document her accusation that

Jerry Rollins was having an extramarital affair with Dana

Flynn. (65, 7001, 10-25; 7002, 1; 79, State’s exhibit #65,

#39)

Relevancy of the Petitioner’s Religious Beliefs

The State of Kansas contends that the petitioner’s

religious beliefs were relevant to the murder trial. The

victim had been described as “evil” and a “devil” by the

defendant’s church. (62, 6494, 21-24; 6495, 4-7) The

minister of the church was the source of the sexual moles-

tation allegations. (65, 6978, 16-22; 6798, 4-8; 6980, 1-9)

The State also presented evidence in pretrial motions

related to the influence that the minister had over his

congregation. (Brief on Relevance of Evidence of Leader-

ship and Control, 2, 391-408) Religion was not on trial;

rather, the State introduced evidence of the petitioner’s

15

religious beliefs to establish motive. (74, 8613, 18-20; 75,

8755, 22-25; 8756, 1-4; 8759, 23-25)

The jury was carefully selected to avoid religious

prejudice. (33, 83, 18-25; 19-23; 34, 290, 11-13; 332, 14-21;

34, 423, 16-17; 35, 497, 16-19; 559, 20-24; 600, 14-22; 678,

14-17; 36, 750, 13-17; 915, 15-16; 37, 990, 7-12; 36, 1230, 2-

14; 39, 1284, 23-25; 1285,1-25; 1304, 12-18; 1306, 17-23;

40, 1513, 1-7; 38, 1535, 3-25; 1536, 1-25; 1540, 12-25; 1548,

8-25; 1549, 1-25; 1550-1553; 1582, 11-25; 1583, 1-12; 41,

1732, 4-15; 1739, 19-22; 1819, 15-25; 1831, 8-24; 42, 1933,

8-24; 1942, 9-17; 2007, 7-21; 2039, 15-25; 2040, 1-17; 43,

2151, 21-25; 2235, 11-20) Religion was not on trial. This

was directly pointed out to the jury by the prosecutor on

several occasions. (75, 8755, 22-25; 8756, 1-4; 8759, 23-25)

Ruling of the Kansas Supreme Court

In its ruling, the Kansas Supreme Court upheld the

convictions, noting the circumstantial nature of the

evidence but finding sufficient evidence to convict the

petitioner. State v. Dreiling, ___ Kan. ___, 54 P.3d 475, 491

(2002). The petitioner asserted that his First Amendment

right to religious freedom and the Kansas statute on

privilege concerning religious belief were violated. The

Kansas Supreme Court stated concerning these argu-

ments:

“Mikel’s First Amendment argument and argu-

ment under K.S.A. 60-430 fail. The religious

practices themselves are not relevant. However,

when a defendant’s religious practices involve be-

liefs and statements such as that the victim mo-

lested a child, the victim was evil, the victim was

the devil, and God would “take care” of the

16

victim, they become relevant in a criminal prose-

cution because they tend to establish a motive for

the defendant to commit the crime.” State v.

Dreiling, __. Kan. __, 54 P.3d 475, 499 (2002)

,

vy

REASON WHY THE PETITION

SHOULD BE DENIED

The admission of evidence regarding the peti-

tioner’s religious beliefs and practices was rele-

vant to establish motive for murder and the case

presents only an issue of application of the exist-

ing law.

The petitioner argues that this case represents an

issue of first impression because this Court has not previ-

ously decided whether it is a violation of the First

Amendment when evidence of a defendant’s religious

beliefs and practices is admitted in a criminal prosecution

for the purpose of establishing the defendant’s motive to

commit a crime, without showing that the defendant’s

religious beliefs inherently promoted such activity. (See

petitioner’s brief, 24-25)

The admission of evidence regarding a person’s beliefs

has previously been decided by this Court. This Court has

clearly stated: “. . . the Constitution does not erect a per

se barrier to the admission of evidence concerning one’s

beliefs and associations simply because those beliefs and

associations are protected by the First Amendment.”

Dawson v. Delaware, 503 U.S. 159, 165, 112 S.Ct. 1093,

117 L.Ed.2d 309 (1992). See also, Barclay v. Florida, 463

U.S. 939, 942-44, 103 S.Ct. 3418, 3420-3421, 77 L.Ed.2d

1134 (1983) (Racial hatred a relevant consideration as an

aggravating factor at sentencing); United States v. Abel,

17

469 U.S. 45, 53, 105 S.Ct. 465, 469, 83 L.Ed.2d 450 (1984)

(Religious association admissible to show bias).

The First Amendment guarantees of individual

freedom of belief and expression are balanced against the

legitimate public interests in law, order, and safety. See

generally, Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476,

486, 13 L.Ed.2d 487 (1965) (Picketing can be reasonably be

restricted outside of a courthouse).

Federal and state courts have shown the ability to

reach a balance. For example: United States v. Perl, 584

F.2d 1316 (4th Cir. Md. 1978) (Court properly instructed

that moral convictions are not a defense to a crime);

Bolling v. Superior Court for Clallam County, 16 Wash.2d

373, 133 P.2d 803 (1943) (Removing children from school

because thc} won’t salute the U.S. flag violates the First

Amendment); State ex. rel. Holcomb v. Armstrong, 39

Wash.2d 860, 239 P.2d 545 (1952) (Requirement that

children receive a lung x-ray before attending public

school does not violate freedom of religion under the First

Amendment).

United States v. Beasley 72 F.3d 1518, 43 Fed. R. Evid.

Serv. 723 (11th Cir. 1996) involved the question of whether

admission of evidence of religious beliefs in a criminal case

violated the First Amendment. The Court of Appeals for

the Eleventh Circuit stated, “A person’s beliefs, supersti-

tions, or affiliation with a religious group is properly

admissible where probative of an issue in a criminal

prosecution.” Beasley, at 1527 (emphasis added). See also,

Aliwoli v. Carter, 225 F.3d 826 (7th Cir. Ill. 2000) (Prosecu-

tor questions concerning faith were proper, and were

related to motive and state of mind).

18

The admissibility of relevant evidence of religious

belief and practice, and even of specific religious figures,

has long been part of American jurisprudence. Many

historic and popularized cases involved the admissibility of

such evidence. These decisions often turned not on the

specific constitutional question presented here, but on the

more basic underlying issue of the relevancy of such

evidence, and whether the probative value of such evi-

dence was outweighed by prejudicial effect. See U.S. uv.

Sun Myung Moon, 718 F.2d 1210, 52 A.F.T.R.2d 83-6026,

83-2 USTC P 9581, 14 Fed. R. Evid. Serv. 133 (2nd Cir.

N.Y. 1983); U.S. v. Barlow, 41 F.3d 935 (5th Cir. 1994); At

the state level, see, State v. Ryan, 233 Neb. 74, 444 N.W.

2d 610 (1989); cert. denied, 498 U.S. 881, 111 S.Ct. 216,

112 L.Ed.2d 176 (1990); cert. denied, 529 U.S. 1100, 120

S.Ct. 1836 (Mem), 146 L.Ed.2d 780 (2000); People uv.

Manson, 61 Cal.App.3d 102, 132 Cal. Rept. 265, Cal.App. 2

Dist. (1976); cert. denied, 430 U.S. 986, 97 S.Ct. 1686

(Mem), 52 L.Ed.2d 382; cert. denied, 435 U.S. 953, 98 S.Ct.

1582 (Mem), 55 L.Ed.2d 803 (1978).

Thought control and influence cannot be seen. It must

be shown by example. In these cases, like the present case,

it was noted that the unusual fact pattern presented

would not be comprehensible without an understanding of

the environment created by the religious figure or leader.

See State v. Ryan, 233 Neb. 74, 104. See also U.S. v. Sun

Myung Moon, 718 F.2d 1210, 1233; People v. Manson, 61

Cal.App.3d 102, 129-132. Some state courts opinions have

dealt specifically with evidence of religious belief or

practice as motive. People v. Cooks, 141 Cal.App.3d 224,

326, 190 Cal.Rptr. 211, Cal.App. 1 Dist. (1983) (Religious

beliefs were relevant to show motive and evidence of

conspiracy to commit murder, and there was no violation

Peete er ee ee

19

of First Amendment rights); State v. Potter, 197 W.Va. 734,

756, 478 S.E.2d 742 (1996) (Decided on State statutory

grounds; minister convicted of child molestation).

The Kansas Supreme Court recognizes that admission

of evidence of religious practice is not always appropriate.

The Kansas Supreme Court understands the rule:

“[A]lthough there is no per se barrier to the introduction of

a person’s membership or participation in a religious

group or association, to be admissible, such evidence

should be related to the commission of the crime charged,

or should be used to show a person’s possible bias or

motive.” State v. Leitner, 272 Kan. 398, 414, 34 P3d 42

(2001), citing Dawson v. Delaware, 503 U.S. 159, 168.

In Leitner, the Kansas Supreme Court stated, “. . .

because the evidence of Leitner’s practice of witchcraft

was more prejudicial than probative, it had no direct

relevance to the crime charged, and did not serve to

impeach Leitner, no reasonable person would take the

view adopted by the trial court in admitting evidence of

Leitner’s participation in witchcraft.” 272 Kan. 398, 416,

34 P.3d 42 (2001). The constitutional question turns on the

evidentiary issue of relevancy, a fact question in each

individual case for the trial court. The Kansas Supreme

Court properly considered and applied the law.

This Court has clearly stated the conditions under

which a petition for certiorari will be granted.

“Review on a writ of certiorari is not a mat-

ter of right, but of judicial discretion. A petition

for a writ of certiorari will be granted only for

compelling reasons. The following, although nei-

ther controlling nor fully measuring the Court’s

discretion, indicate the character of the reasons

20

the Court considers: (a) a United States court of

appeals has entered a decision in conflict with

the decision of another United States court of

appeals on the same important matter; has de-

cided an important federal question in a way

that conflicts with a decision by a state court of

last resort; or has so far departed from the ac-

cepted and usual course of judicial proceedings,

or sanctioned such a departure by a lower court,

as to call for an exercise of this Court’s supervi-

sory power; (b) a state court of last resort has de-

cided an important federal question in a way

that conflicts with the decision of another state

court of last resort or of a United States court of

appeals; (c) a state court or a United States court

of appeals has decided an important question of

federal law that has not been, but should be, set-

tled by this Court, or has decided an important

federal question in a way that conflicts with rele-

vant decisions of this Court.” (Rule 10)

In this case, no such circumstance, and therefore no

compelling reasons exist to grant a writ of certiorari.

Religious beliefs, particularly fanatical ones, do

influence human behavior. The jury could not have under-

stood this Kansas case in a vacuum. The prophesies of

molestation, atmosphere created by the “prophet” Rollins,

and self-righteous statements that Sheridan was “evil”

and deserved to die, were all relevant to this trial, regard-

less of whether or not evidence was presented that Rollins

ordered the murder. The jury would have laughed the

prosecution out of the courtroom for the notion that

Sheridan was in part killed by Dreiling and Flynn because

he was believed to be a “devil” without evidence of the

church, Rollins’ teachings, and the practices, prophesies,

and beliefs.

21

In addition, the devil references and church practices

were part and parcel of the underlying custody battle. J.F.

and A.S. both made references to devil fear. The effect of

the church on the children and church practices were

issues in the underlying custody battle. Even if the church

practices were not directly relevant, which they are, they

certainly became relevant by reason of the role the church

practices played in the underlying custody battle. The

State could not show the nature, extent, and viciousness of

this custody battle without an explanation of what it

involved.

The petitioner alleges that evidence of religious

practices was introduced only to show motive. In fact,

evidence of the religious practice of speaking in tongues

was introduced to prove perjury conspiracy charges as

well. In its ruling, the Kansas Supreme Court found that

the conspiracy to commit perjury charges and the other

charges were properly joined. Dreiling, 54 P.3d 475, at 496.

The Court also stated:

“While speaking in tongues and prophesying are

facially innocuous, when they involve labeling

someone as “evil” and “the devil” and inform the

audience that in effect God does not want a man

to have custody of his daughter, then they be-

come relevant to the motive for murder, and,

therefore, relevant evidence.” Dreiling, 54 P.3d

475, at 499.

These criminal cases which involve evidence of reli-

gious practice necessarily turn on specific facts. There is

no per se rule — and cannot be. Evidence of motive is

simply another form of relevant evidence in a murder case.

22

The specific question presented in this petition does not

therefore raise a new issue of law.

4

CONCLUSION

WHEREFORE, for the reasons stated above, respon-

dent respectfully prays this Court deny Mikel J. Dreiling’s

Petition for a Writ of Certiorari.

Respectfully submitted,

CHRIS BIGGS

Geary County Attorney

801 N. Washington, Suite A

Junction City, Kansas 66441

(785) 762-4343

Counsel for Respondent