# Petition for Writ of Certiorari — Rutter v. Missouri

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2003
- **Citation:** 540 U.S. 812

## Text

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
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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

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1518%3A1. Public record. Not legal advice.