Petition for Writ of Certiorari — Rutter v. Missouri

OFFICE OF THE CLERK

CHARLES LEE RUTTER,

PETITIONER

V.

STATE OF MISSOURI {

On Petition For Writ Of Certiorari

To The Missouri Supreme Court

PETITION FOR WRIT OF CERTIORARI

Joseph L. Bauer, Jr.

Counsel of Record

Bauer & Baebler, P.C.

1010 Market Street

Suite 350

St. Louis, Missouri 63101

(314) 241-7700

nye

y2 \\

QUESTIONS PRESENTED

Whether the prosecuting attorney is

permitted to introduce evidence obtained in

violation of Mr. Rutter’s Fourth Amendment

rights in the State’s case-in-chief or in

rebuttal as substantive evidence of guilt or

whether same may be used only as

impeachment evidence.

Whether the appropriate standard of review

in determining if a constitutional trial error

mandates reversal of Mr. Rutter’s convictions

Where it involves the _ prosecution’s

presentation of illegally obtained evidence in

its case-in-chief is by a reasonable

probability that it did not change Mr.

Rutter’s verdict or whether the appropriate

standard is that an appellate court must be

convinced beyond a reasonable doubt that it

did not change the verdict entered at Mr.

Rutter’s trial.

PARTIES TO PROCEEDING

The parties to the proceeding are set forth in

the caption to this case and are Petitioner, Charles

Lee Rutter, with Joseph L. Bauer, Jr., the counsel of

record, Terry J. Flanagan, and John W. Peel. The

Respondent is the State of Missouri, and is

represented by the Missouri Attorney General’s

Office, Jeremiah W. (Jay) Nixon and Breck K. -

Burgess.

li

TABLE OF CONTENTS

CDROBTIOMS PROGOTIOT ....n......ccescsccccccscccscscosscosess i

Parties to the Proceeding ................s:.ssceseees ii

Pe GE TORII oisincccccsccccccsesccesess paises iii

Te Oe PRT oa vnc vines certiicsscevescsecnecensess iv

Citations to Official Reports .. .. Vi

BE DUNU OUNIDE a cnccsnncncecsvesesccornsessnecses Vii

Constitutional Provisions ...............ccccccceeeeeeee Viii

Argument

Statement of the Case ................. 1

First Question Presented ................... 4

Second Question Presented ............... 10

Conclusion .. .14

Appendix filed paride

ili

amenen~eenemaepmmmmaaai nia eiaaniaiiiaiaia iii.

TABLE OF AUTHORITIES

Constitutional

U.S. Const. amend IV. .........ss:us-eersseres ” Seana

U.S. Const. a

U.S. Const. amend. XIV, dilantin 4,10

. Case Law

Agnello v. United States, 269 U.S. 20,

_. hE te Tt: .) Sn eene nnn 7

Bumper v. North Carolina, 391 US. 543,

88 S.Ct. 1788, 1792 (1968) ........... 11

Byars v. United States, 273 U.S. 28,

CF SAD, BU CR oisciiccimicon 11

Chambers v. Maroney, 399 U.S. 42,

GO G.E. TSFS, GOTO) ncscvvsonenevsseevens 11

Chapman v. California, 386 U.S. 18,

OF LE, Fe Ce sceiinessseiconcinnss 11

Fahy v. State of Connecticut, 375 U.S. 85,

ee es. Bt 11

Harris v. New York, 401 U.S. 222,

FE S5 EBRD vests nisorercnvsones 6, 7

lames v. Illinois, 493 U.S. 307, |

BED SEG CF asccisivivcnsvvcessconss 6, 7,8

Kuntz v. McCaughtry, 806 F.Supp. 1373

CED). FU, TIGR) cscctivseccvercsenivcssionncens 8

Mapp v. Ohio, 367 U.S. 643,

Gi S.X.. TOG EGG) oicrvneneiscvcorvesss 11

Oregon v. Hass, 420 U.S. 714, .

Te BL, THA CEFF OD neansesicnarssesienvins 6,7

People v. Trujillo, 49 P.3d 316, 319

a

(2 | | Reemeneenenrvenn Aiea noe toni

State vs. Kinkead, 983 S.W.2d 518

FI ED cabisevinecanncevsanacnicinantinnsptcie

United States v. Havens, 446 U.S. 620,

og eo |) nnn

Walder v. United States, 347 U.S. 62,

74 S.Ct. 354 (1954) ccecsescsssssssesssesee

____ Secondary Sources

1 John W. Strong, McCormick on

Evidence § 33 (5 Ed. 1999) ....... 5

CITATIONS TO OFFICIAL REPORTS

State v. Charles Rutter, 2002 WL 713246 (Mo. Ct.

os

App. April 25, 2002)

State v. Charles Rutter, 93 S.W.3d 714 (Mo. 2002)

ec I ny a

OI NO RE RR A TO et — se A cat I ts ltt

eS A a hl -

BASIS OF JURISDICTION

Mr. Rutter seeks review of the Missouri

Supreme Court's decision entered on December 24,

2002, which affirmed his convictions for Murder in

the First Degree and Armed Criminal Action. Mr.

Rutter timely filed a Motion for

Rehearing/Reconsideration, and same was denied

on or about January 28, 2003. Thus, this Court

properly possesses jurisdiction to review this matter

pursuant to 28 U.S.C. § 1257 and other like statutes.

Vii

ee

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. IV.

The right of the people to

be secure in their persons,

houses, papers, and effects,

against unreasonable

searches and seizures, shall

not be violated, and no

Warrants shall issue, but

upon probable cause,

supported by Oath or

affirmation, and

particularly describing the

place to be searched, and

the persons or things to be

seized.

US. Const. amend. V.

No person shall be held to

answer for a capital, or

otherwise infamous crime,

unless on a presentment or

indictment of a Grand

Jury, except in cases

arising in the land or naval

forces, or in the Militia,

when in actual service in

time of War or public

danger; nor shall any

person be subject for the

Vili

same offence to be twice

put in jeopardy of life or

limb; nor shall be

compelled in any criminal

case to be a witness against

himself, nor be deprived of

life, liberty, or property,

without due process of

law; nor _ shall private

property be taken for

public use, without just

compensation.

U.S. Const. amend XIV.

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.

ce ae Ne

STATEMENT OF THE CASE

On June 29, 2000, the Petitioner, Mr. Charles

Rutter, was found guilty by a jury of Murder in the

First Degree and Armed Criminal Action for events

occurring on April 4, 1999. Mr. Rutter received a

sentenice of life imprisonment without the possibility

of probation or parole on each count, with these

sentences to run concurrently.

On April 4, 1999, Mr. Hinkle was shot one (1)

time by Mr. Rutter and subsequently died. The

pertinent facts were that Mr. Hinkle destroyed Mr.

Rutter’s home, physically attacked him and

threatened to kill Mr. Rutter. Mr. Hinkle then went

to the living room closet in order to locate a long-gun

contained therein. Despite Mr. Rutter’s requests, Mr.

Hinkle continued to reach for the firearm and Mr.

Rutter was forced to shoot him in self-defense.

The locallaw enforcement officers responding

to the shooting call entered Mr. Rutter’s home. After

the securing of the residence, the law enforcement

personnel conducted a thorough search of the home,

including a search of the living room closet. These

same Officers testified that there were no firearms

contained therein.

Mr. Rutter testified that there were three (3)

firearms in that closet on April 4, 1999, and also

presented the testimony of Nelson Dean, Gina

Warren, Billy Joe Luten, Donald Wright, and Doug

Bond where each witness stated that he or she

observed these long guns on that date. Thus, the

Page 1of 17

issue of the contents of this closet was critical to Mr.

Rutter’s presentation of self-defense.

Based upon the foregoing illegally obtained

evidence, which was presented in the State’s case-in-

chief, the State argued in closing that Mr. Rutter

7

“shot an unarmed man.” Moreover, in discussing

the search of the closet, the State argued that the

officer recalled the “dimensions of that closet were

down to 3/8 of an inch ... But he’s on his hands and

knees in there and he sees no guns.”

Following the jury’s guilty verdicts, Mr. Rutter

timely filed his Motion for New Trial, which, once

again, complained of the warrantless search of his

home, but this Motion was subsequently denied. A

Notice of Appeal was filed to the Southern District of

the Missouri Court of Appeals where Mr. Rutter

requested review of the trial court's ruling on the

Motion to Suppress Evidence. On April 25, 2002, the

Court of Appeals affirmed the trial court’s ruling,

including the Motion to Suppress Evidence issue,

and thereby affirmed Mr. Rutter’s convictions. A

timely Motion for Reconsideration was then filed

with the Court of Appeals, but said request was

denied on May 16, 2002.

Mr. Rutter filed his Motion for Transfer to the

Missouri Supreme Court and same was granted on

or about June 25, 2002. The Missouri Supreme Court

entered its decision on December 24, 2002, holding

that the search of Mr. Rutter’s closet was unlawful

and in violation of Mr. Rutter’s rights bestowed upon

Page 2 of 17

him by the Fourth Amendment, and that Mr. Rutter

had preserved this issue for appellate review. That

Court, when discussing whether Mr. Rutter was

prejudiced by this unlawful search, recognized that

“[t]he existence or non-existence of weapons in the

closet was integral to Appellant’s claim that he acted

in self-defense.” Ultimately, the Missouri Supreme

Court held that the trial court error was harmless

because “[t]here isno reasonable probability that the

State’s presentation of the evidence in its case-in-

chief as opposed to rebuttal changed the verdict.”

Mr. Rutter filed his Motion for Reconsideration

on or about January 7, 2003. In said Motion, Mr.

Rutter brought to the Court’s attention that the

decision improperly allows illegally obtained

evidence to be used as substantive evidence of guilt

and said decision does not limit the use of this

evidence to impeachment evidence only. Mr. Rutter,

through his Motion, also complained “[t]hat the

Court's opinion fails to find that harmless error was

present beyond a reasonable doubt but rather only

finds that said error was present in the opinion of the

Court by a ‘reasonable probability.’”

Mr. Rutter’s Motion for Consideration was

denied on or about January 28, 2003. This Petition

for Writ of Certiorari follows.

Page 3 of 17

ARGUMENT

1. Whether the prosecuting attorney is

permitted to introduce evidence obtained in

violation of Mr. Rutter’s Fourth Amendment

rights in the State’s case-in-chief or in

rebuttal as substantive evidence of guilt or

whether same may be used only as

impeachment evidence.

The first question presented to this Court is

whether evidence of law enforcement officers’

observations, which were made and seized in

violation of Petitioner’s Fourth Amendment rights,

may be admitted as substantive evidence of his guilt

during the State’s case-in-chief and/or in the State’s

rebuttal.

The Fourth Amendment of the United States

Constitution guarantees that individuals shall be free

from unreasonable searches and seizures. U.S.

Const. amend IV. The Fifth Amendment of the

United States Constitution provides that individuals

shall enjoy due process of law. U.S. Const.amend V.

The Fourteenth Amendment of the United States

Constitution also requires that State’s provide due

process of law and enforce the provisions of the

United States Constitution. U.S. Const.amend. XIV.

Unfortunately, these same rights were ignored in Mr.

Rutter’s case.

At Mr. Rutter’s trial, the State, in its case-in-

chief and through direct examination, presented

evidence that at least two (2) separate officers

conducted a search of Mr. Rutter’s closet, and

Page 4 of 17

=> er

—

through that search they concluded that no weapons

were contained therein. State v. Rutter, 93 S.W.3d

714, 721 (Mo. 2002). The Missouri Supreme Court

held that “the evidence of the observations of

Deputies Helton and Young as to the contents of the

closet was seized in violation of the Fourth

Amendment, and no exceptions applied, and it was

error to allow the State to present the evidence in its

case-in-chief.” Id. at 728. However, the Missouri

Supreme Court also stated the following:

Regardless of the trial

court’s error in allowing

the disputed evidence to

be presented in the State’s

case-in-chief, the evidence

would have. been

admissible as_ rebuttal

evidence had the trial

court not erred. There is

no reasonable probability

that the State’s

presentation of the

evidence in its case-in-chief

as opposed to rebuttal

changed the verdict.

Id. at 728-729. In other words, the Missouri Supreme

Court believed thatno prejudice was suffered by Mr.

Rutter in the State’s presentation of this evidence in

its. case-in-chief and that same may be used as

Page 5 of 17

substantive evidence’ of his guilt in either the State’s

case-in-chief and/or rebuttal.

In United States v. Havens, 446 U.S. 620, 100

S.Ct. 1912 (1980), this Court discussed the manner in

which illegally obtained evidence may be used at a

criminal trial. Ultimately, this Court concluded that

evidence seized in violation of the Fourth

Amendment may be used to impeach a testifying

defendant. Id. at 627-628. In so holding, this Court

stated that “the ends of the exclusionary rules were

thought adequately implemented by denying the

Impeachment evidence may be defined as evidence

“used to attack the truth-teliing capacity of a

witness.” People v. Trujillo, 49 P.3d 316, 319 (Co.

2002) citing 1 John W. Strong, McCormick on Evidence

§ 33 (5" Ed. 1999). While, rebuttal evidence is

generally used to contradict an adverse witness or a

party’s presentation of contradictory evidence or

arguments. Trujillo, 49 P.3d 320 (stating that “[t]his

type of rebuttal evidence is generally substantive in

nature, may support the party’s case-in-chief ... and

is presented after the opposing party has presented

its evidence”). Mr. Rutter further submits that the

Missouri Supreme Court clearly understood this

distinction in light of their discussion of Mr. Rutter’s

Motion for New Trial based upon the Mr. Tony

Cole’s error in testimony.

Page 6 of 17

government the use of the challenged evidence to

make out its case in chief.” Id. at 627. Moreover, this

Court explicitly stated that such illegally obtained

evidence may not be used in “the government's

direct case, or otherwise, as substantive evidence of

guilt.” Id. at 628.

In James v. Illinois, 493 U.S. 307, 110 S.Ct. 648

(1990), this Court addressed the issue of illegally

obtained statements made by a criminal defendant

during trial, and whether same may be used to

impeach a witness other than the defendant. In that

case this Court stated that said statements may be

used “for the limited purpose of impeaching the

credibility of the defendant’s own testimony.” Id. at

312. The Court further stated, relying upon Walder

v. United States, 347 U.S. 62, 74 S.Ct. 354 (1954),

Harris v. New York, 401 U.S. 222, 91 S.Ct. 643 (1971),

Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215 (1975),

and United States v. Havens, 446 U.S. 620, 100 S.Ct.

1912 (1980), “[t]his Court insisted throughout this

line of cases that ‘evidence that has been illegally

obtained ... is inadmissible on the government's

direct case, or otherwise, as substantive evidence of

guilt.” Id. at 313. This Court reaffirmed its prior

holdings of impeachment use only and refused to

provide yet another exception to the use of illegally

obtained evidence at trial, and thereby disallowed

the use of tainted evidence to impeach a witness

other than a testifying defendant. Id. at 320.

In each case reviewed by Mr. Rutter involving

Page 7 of 17

the usage of illegally obtained evidence, it appears

that this Court engages in a competing interests

review balancing the purpose of the exclusionary

rule and society’s interest in seeking the truth.

Originally, this Court in Agnello v. United States, 269

U.S. 20, 35, 46 S.Ct. 4, 7 (1925), held that illegally

obtained evidence may not be used whatsoever at a

criminal trial. This absolute usage bar was curtailed

by this Court’s decisions in Walder v. United States,

347 U.S. 62, 74 S.Ct. 354 (1954), which permitted the

use of evidence obtained in violation of the Fourth

Amendment to impeach the direct testimony of a

testifying defendant. The bar to use was once again

lessened in Harris v. New York, 401 U.S. 222,915.Ct.

643 (1971), and Oregon v. Hass, 420 U.S. 714, 95S.Ct.

1215 (1975), which both permitted the use of illegally

obtained statements to impeach a “testifying ©

defendant. Then again in United States v. Havens

446 U.S. 620, 100 S.Ct. 1912 (1980), this Court

condoned the use of evidence obtained in violation

of the Fourth Amendment to impeach a testifying

defendant. However, in James v. Illinois, 493 U.S.

307, 110 S.Ct. 648 (1990), this Court refused to extend

the impeachment exception to witnesses other than

the defendant. It must be noted that none of the

aforementioned cases condoned the use of this

evidence as substantive evidence of guilt, and limited

the usage to impeachment only.

When discussing these competing interests,

the Havens Court, relying upon Walder, Harris, and

Page 8 of 17

Hass, stated that “the ends of the exclusionary rules

were thought adequately implemented by denying

the government the use of challenged evidence to

make out its case in chief.” 446 U.S. at 627. In fact,

this Court stated in James that allowing the use of

this tainted evidence to impeach a testifying

defendant furthered the truth seeking process but

did not frustrate the purpose of the exclusionary rule

and the “balances of values underlying the

exclusionary rule justified an exception covering

impeachment of defendants’ testimony.” 493 U.S.

313. Thus, this Court only permits the use of illegally

obtained evidence to impeach a testifying defendant

because any further usage would frustrate the

exclusionary rule. Now the question before this

Court in the case at bar is whether use of illegally

obtained evidence as substantive evidence of guilt in

the State’s case-in-chief and/or rebuttal is a proper

extension of this Court’s prior decisions.

In the case at bar, and in contravention with

this Court’s competing interest concerns, the

Missouri Supreme Court's decision renders the

exclusionary rule a figment of imagination, with

absolutely no deterrent effect whatsoever. See

lames, 493 U.S. at 313-314 (refusing to extend use of

illegally obtained evidence against witnesses other

‘than a defendant because the “expansion would not

promote the truthseeking function to the same extent

as did creation of the original exception, and yet it

would significantly undermine the deterrent effect of

Page 9 of 17

the general exclusionary rule [in fact] the proposed

expansion would frustrate rather than further the

purposes underlying the exclusionary rule”).

Ultimately, and practically, Mr. Rutter’s

Fourth, Fifth and Fourteenth Amendment rights

were the subject of judicial nullification despite the

fact that his life hangs in the balance. Mr. Rutter

certainly did not enjoy any Fourth Amendment

protections regarding the search of his home and the

State suffered no consequence as a result of its

constitutionally invalid search. In fact, the officers

testified freely during the State’s case-in-chief of their

search and the tainted fruits therefrom. Mr. Rutter

submits that actual application of the Missouri

Supreme Court’s decision renders his Fourth

Amendment rights non-existent and overrules this

Court’s exclusionary rule as it played no role in his

case. See Kuntz v. McCaughtry, 806 F.Supp. 1373,

1380 (E.D. Wis. 1992) citing James, 493 U.S. at 319,

110 S.Ct. at 655 (stating that “[s]o long as we are

committed to protecting the people from the

disregard of their constitutional rights during the

course of criminal investigations, inadmissibility of

illegally obtained evidence must remain the rule, not

the exception.”)

In accord with this Court's prior decisions, Mr.

Rutter submits that the illegally obtained

observations in question, at best, may be used only as

impeachment evidence against Mr. Rutter’s own

testimony and not as substantive evidence of his

Page 10 of 17

guilt. Mr. Rutter is aware of no case, other than the

decision by the Missouri Supreme Court in this

matter, that condones or forgives the presentation of

illegally obtained evidence in the prosecution’s case-

in-chief or in rebuttal as substantive evidence of a

defendant's guilt. It is Mr. Rutter’s contention that

the manner in which this illegally obtained evidence

was used violated his Fourth, Fifth and Fourteenth

Amendment rights bestowed upon by the United

States Constitution and that his convictions for

Murder in the First Degree and Armed Criminal

Action, for which he is now a life-long prisoner of the

Missouri Department of Corrections, must be

reversed.

In conclusion, Mr. Rutter suggests that

Missouri Supreme Court's decision permitting the

use of illegally obtained evidence as substantive

evidence of guilt in the State’s case-in-chief and/or in

rebuttal is in error. Therefore, Mr. Rutter prays for

an Order of this Court granting his Petition for Writ

of Certiorari in order to review the issue presented

and so that he may present same fully to this Court.

Page 11 of 17

2. Whether the appropriate standard of review

in determining if a constitutional trial error

mandates reversal of Mr. Rutter’s convictions

where it involves the prosecution's

presentation of illegally obtained evidence in

its case-in-chief is by a reasonable

probability that it did not change Mr.

Rutter’s verdict or whether the appropriate

standard is that an appellate court must be

convinced beyond a reasonable doubt that it

did not change the verdict entered at Mr.

Rutter’s trial.

The next question presented to this Court is

what level of belief must an appellate court possess

in determining whether a constitutional trial error

involving the admission of illegally obtained

evidence as substantive evidence of guilt would

“change” Mr. Rutter’s guilty verdict; reasonable

probability or beyond a reasonable doubt.

The Fifth Amendment of the United States

Constitution provides that individuals shall enjoy

due process of law. U.S. Const. amend V. The

Fourteenth Amendment of the United States

Constitution also requires that State's provide due

process of law and enforce the provisions of the

United States Constitution. U.S. Const. amend. XIV.

In the case at bar, the Missouri Supreme Court

found that constitutional error was present in that

the State was allowed to admit evidence in its case-

in-chief that was obtained in violation of the Fourth

Page 12 of 17

Amendment. Rutter, 93 S.W.3d at 728. However, in

affirming Mr. Rutter’s convictions, the Missouri

Supreme Court held that “[t]here is no reasonable

probability that the State’s presentation of the

[tainted] evidence in its case-in-chief as opposed to

rebuttal changed the verdict.” Rutter, 935.W.3d 714,

728-729 (Mo. 2002). In other words, the Court held

that it was reasonably probable that Mr. Rutter

would be convicted once again if this matter were

retried and the evidence were allowed only in

rebuttal as substantive evidence of guilt.

This Court in Chapman v. California, 386 US.

18, 87 S.Ct. 824 (1967), discussed the standard of

review regarding constitutional trial court error. In

that case, the Court stated that where a criminal

defendant suffers a denial of the “rights rooted in the

Bill of Rights” the issue becomes that of a federal

question, and is then subject to the federal harmless

constitutional error standards. Id. at 21. The Court

then stated that constitutional error review that an

appellate court must employ is “‘whether there is a

reasonable possibility that the evidence complained

of might have contributed to the conviction,’” and, if

it did contribute, the convictions must be reversed.

Id. at 23 citing Fahy v. State of Connecticut, 375 U.S.

85, 86-87, 84 S.Ct. 229, 230 (1963). In other words,

“before a federal constitutional error can be held

harmless, the court must be able to declare a belief

that it was harmless beyond a reasonable doubt.” Id.

at 24. One example provided by the Court requiring

Page 13 of 17

this beyond a reasonable doubt standard is where

the error involves illegally admitting highly

prejudicial evidence or comments. Id.

In Mapp v. Ohio, 367 U.S. 643, 649 81 S.Ct.

1684, 1688 (1961), this Court stated that the

exclusionary rule is of constitutional origin. In fact,

the Mapp Court stated that illegally obtained

evidence cannot be tolerated. Id. citing Byars v.

United States, 273 U.S. 28, 47 S.Ct. 248 (1927). Thus,

the error involving the enforcement of the

exclusionary rule is constitutional error requiring the

application of the beyond a reasonable doubt

standard, and not one of reasonable probability. See

also Chambers v. Maroney, 399 U.S. 42, 52-53, 90

S.Ct. 1975, 1981-1982 (1970) (applying constitutional

harmless error beyond a reasonable doubt standard

to admission of evidence seized in violation of the

Fourth Amendment); Bumper v. North Carolina, 391

U.S. 543, 550, 88 S.Ct. 1788, 1792 (1968) (holding that

illegally obtained firearm presented in the

prosecution’s case-in-chief was not harmless error).

As set forth above, in affirming Mr. Rutter’s

convictions, the Missouri Supreme Court held that

“[t]here is no reasonable probability that the State’s

presentation of the [tainted] evidence in its case-in-

chief as opposed to rebuttal changed the verdict.”

Rutter, 93 S.W.3d 714, 728-729 (Mo. 2002). In other

words, the Court held that it was reasonably

probable that Mr. Rutter would be convicted once

again if this matter were retried and the evidence

Page 14 of 17

were allowed only in rebuttal as substantive

evidence of guilt.

As set forth above in the first question

presented, Mr. Rutter believes that the illegally

obtained evidence in question may not be used as

substantive evidence of his guilt. Nonetheless, the

Missouri Supreme Court’s belief assumes that Mr.

Rutter must testify in his own defense, that there is

no other evidence available to establish his theory of

self-defense, and that Mr. Rutter would, in fact,

present his theory of self-defense during retrial. See

State vs. Kinkead, 983 S.W.2d 518, 519 (Mo. 1998)

(refusing to discharge defendant after sustaining

motion to suppress on appeal because “|[t]he State is

entitled to rely on the trial court's erroneous ruling in

determining what evidence to produce” and

therefore the Court did not desire to assume that it

was not possible there was some other evidence that

would establish the defendant's culpability). Quite

frankly, as Mr. Rutter’s counsel, I cannot state that

the above events will occur within a reasonable

degree of probability, let alone beyond a reasonable

doubt, in that a criminal defendant must await the

presentation of the State’s case-in-chief before a true

decision is made as to what evidence must be

presented.

In accord with Chapman, Mr. Rutter submits

that the admission of illegally obtained evidence as

substantive evidence in the State’s case-in-chief

where same involved an integral issue should be

Page 15 of 17

subjected to this beyond a reasonable doubt harmless

error review. This is not standard of review

employed by the Missouri Supreme Court in

reviewing this constitutional error.

The standard of review that the Missouri

Supreme Court employed in Mr. Rutter’s case is in

conflict with the mandate of Chapman in that it is not

whether it was reasonably probable that the verdict

would change, butrather, whether it was reasonably

probable that it contributed to Mr. Rutter’s

conviction. The Missouri Supreme Court's own

finding that the verdict would not change gives rise

to the conclusion that it was more than reasonably

probable that this evidence contributed to Mr.

Rutter’s conviction, but rather contributed beyond a

reasonable doubt.

Thus, the Missouri Supreme Court's standard

of review in determining the severity of this

constitutional trial error was improper. Therefore,

Mr. Rutter, relying upon this Fifth and Fourteenth

Amendment rights, prays that this Court grant his

Petition for Writ of Certiorari so that it may review

this issue.

Page 16 of 17

CONCLUSION

Wherefore, in light of the foregoing, Mr. Rutter

prays for an Order of this Court granting his Petition

for Writ of Certiorari so that this matter may be

reviewed and determined by this Court.

Page 17 of 17