Opposition Brief — Slavin v. New York

oe ‘“

2

No. 03-1666 —epamston us |

FILED

Y yuL 19 2004

In The erie oF HE CLERK J

Supreme Court of the Anited States

+

CHRISTOPHER SLAVIN,

Petitioner,

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

o

On Petition For Writ Of Certiorari

To The New York State Court Of Appeals

t

BRIEF IN OPPOSITION

— ¢

STEVEN A. HOVANI*

Of Counsel to

THOMAS J. SPOTA

District Attorney of

Suffolk County

Criminal Courts Building

200 Center Drive

Riverhead, New York 11901

(631) 852-2463

*Counsel of Record

for Respondent

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

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Does the constitutional guarantee of free expression

prohibit governmental use of symbols of hatred tattooed on

a criminal defendant’s body?

No.

2. Once he surrendered, did petitioner have a constitu-

tional right to prohibit photographs of tattoos on non-

intimate areas of his body?

No.

3. Were petitioner’s tattoos relevant to his intent to kill

and motive for committing a hate crime?

Yes.

4. Can a trial court balancing the probative value of such

tattoos against any unfair prejudice permit the prosecu-

tion to present expert testimony to interpret the racist

symbolism?

Yes.

5. Did the prosecution’s use of the tattoos, which were

prior communicati statements voluntarily created by

petitioner prior +, oeing in custody, violate his privilege

against testimonial self-incrimination when petitioner was

neither forced to authenticate or explain them at trial?

No.

TABLE OF CONTENTS

. Questions Presented .....ceissenene

Table of Contents.................... oveussviehendesaieataddaiaanmatadeas

Table of Camee.....+::sss:cesverseneen see

Statement of Facts .....0:<:««.saseu ee

Background PT re te ee ae

ii

TABLE OF CONTENTS - Continued

Page

I. The decision of the New York State Court of

Appeals is in harmony with federal constitu-

tional interpretation of the Fifth Amendment

privilege against self-incrimination and the

holding in United States v. Hubbell, 530 U.S.

tial Tes cecndiciholtecketbisaabeaicbaperdermedscsouseues 19

II. The decision of the New York State Court of

Appeals is also in harmony with federal consti-

tutional interpretation of the First, Fourth,

Sixth, and Fourteenth Amendments................. 24

EE LES ir ven a ea 30

lv

TABLE OF CASES

Page

CASES

Andersen v. Maryland, 427 U.S. 463 (1976)... 21

Application to Quash a Grand Jury Subpoena

Dated December 28, 1992, 157 Misc.2d 432 (Sup.

Ss rane Ges MD coheicecucallnssccovssiilliecdpnipuaeinbesshanediteepienuts 22

Arizona v. Fulminante, 499 U.S. 279 (1991)..................84. 30

Barclay v. Florida, 463 U.S. 939 (1983) 0.0... eens 25

Barrett v. Acevedo, 143 F.3d 449 (8th Cir. 1998).............. 22

Bery v. City of New York, 97 F.3d 689 (2d Cir. 1996)........ 24

Boyd v. United States, 116 U.S. 616 (1886)... 22

Chimel v. California, 395 U.S. 752 (1969) ..........c eee 28

Crawford v. Washington, __ U.S. __, 124 S.Ct.

SE SINE iscsacccesicnaienstienereccsedencigsiianenauanbicsdareaammaanian 21

Commonwealth v. Romero, 1997 WL 1070445, 43

Va. Cir. 530 (Cir. Ct. Va. Fairfax Co. 1997).............0.04. 29

Couch v. United States, 409 U.S. 322 (19738)................0... 24

Cupp v. Murphy, 412 U.S. 291 (1973) 0... cesses 26

Curcio v. United States, 354 U.S. 118 (1997).................... 24

Dawson v. Delaware, 503 U.S. 159 (1992).................. 24, 25

Doe v. United States, 487 U.S. 201 (1988)............ 20, 22, 24

Fisher v. United States, 425 U.S. 392 (1976).............. 21, 22

Gilbert v. California, 388 U.S. 263 (1967)......sssssssssssssseee 23

Hoffa v. United States, 385 U.S. 293 (1966)..................... 20

Holt v. United States, 218 U.S. 145 (1910)... 20

Horton v. California, 496 U.S. 128 (1990)........... ee. 28

TABLE OF CASES - Continued

Page

In re Grand Jury Proceedings (Johansen), 632 F.2d

Be CFE Ga Fe betittincnttoentinannibnaannamanan 21

In re Grand Jury Subpoena Duces Tecum Dated

December 14,1984, Y., M.D., P.C. v. Kuriansky, 69

N.Y.2d 732, cert. denied, 482 U.S. 928 (1987)............... 22

In re Grand Jury Subpoena Duces Tecum Dated

May 9, 1990, 741 F Supp. 1059 (S.D.N-Y. 1990) ........... 21

In re Grand Jury Subpoena Duces Tecum Dated

October 29, 1992, 1 F.3d 87 (3d Cir. 1993)................... 21

In re Layden, 446 F.Supp. 53 (N.D. Il. 1978)............00... 23

In re Vanderbilt (Rosner-Hickey), 57 N.Y.2d 66

(BIPUED sussreseiarenniccauehvanaarian disctneeunn bce 21, 22

Johnson v. United States, 228 U.S. 457 (1913).......000...0... 21

Katz v. United States, 389 U.S. 347 (1967) ..........00... 20, 25

King v. State, 29 S.W.3d 556 (Tex. Crim. App. 2000)........ 29

Lauro v. Charles, 219 F.3d 202 (2d Cir. 2000)................... 27

New York v. Belton, 453 U.S. 454 (1981) oo... eee 28

Oliver v. Middlebrooks, 402 F.2d 781 (5th Cir. 1968)....... 23

Pennsylvania v. Muniz, 496 U.S. 582 (1990)........ 20, 23, 24

People v. Aishman, 19 Cal. Rptr.2d 444 (Cal. App. 4

EIROE,, TIBIA a cvesersnecrestsessticorennenehuniaclaseceesneiaaaaaaeliae 30

People v. Allah, 84 Misc.2d 500 (Sup. Ct. Bronx Co.

DIF) cnvcsvssersvenersisiencicioeuncnennnlieendin eee 27

People v. Alpern, 217 A.D.2d 853 (2d Dept. 1985)............ 24

People v. Archibald, 269 A.D.2d 682 (2d Dept.),

lv. denied, 92 N.Y.2d 880 (2000)..............esessseeseeeeees ne 20

People v. Baez, 131 A.D.2d 687 (2d Dept. 1987)............... 10

vi

TABLE OF CASES -—- Continued

SEI) . convccocsecsunceciesusteusuasinciasamaimaianndaus tama aunties 26

People v. Barclay, 201 A.D.2d 952 (4th Dept. 1994) ......... 28

People v. Beckwith, 303 A.D.2d 594 (2d Dept. 2003)........ 21

People v. Belton, 55 N.Y.2d 49 (1982) ..........ccccesesseeeeeeeerees 28

People v. Berg, 92 N.Y.2d 701 (1999) .........ccsscecesseeeeees 20, 24

People v. Boudreau, 115 A.D.2d 652 (2d Dept. 1985) ....... 23

People v. Chiagles, 237 N.Y. 193 (1923)...........ccsciecceseeeees 27

People v. Colavito, 87 N.Y.2d 423 (1996)...........ccccccceeeeeees 24

People v. Copicotto, 50 N.Y.2d 222 (1980).............:008 21, 24

People v. Cwikla, 46 N.Y.2d 434 (1979)..........ccccceeeeeeeebenees 27

People v. DeSantis, 46 N.Y.2d 838, cert. denied, 443

UB. GES (IGT EP encsecsessdicrecsnsteevnnencanaaee 28

People v. DiBella, 277 A.D.2d 699 (3d Dept. 2000),

lv. denied, 96 N.Y.2d 758 (2001).............ccccccssssseeeees 10, 26

People v. Evans, 43 N.Y.2d 160 (1977).............cceccseeeeeeeeeee 27

People v. Fitzpatrick, 32 N.Y.2d 499 (1973)..........cceeeeeee 22

People v. Gallina, 110 A.D.2d 847 (2d Dept. 1985)........... 26

People v. George, 227 A.D.2d 316 (1st Dept. 1996)........... 10

People v. Grokey, 60 N.Y.2d 309 (1983)... cceeeeseeeeeeee 27

People v, Hager, 69 N.Y.2d 141 (1987) ....ccccsssssssssseeeve 20, 24

People v. Herr, 203 A.D.2d 927 (4th Dept. 1994),

aff'd, O6 PV. F.2e GEG (IGG GP sesccecssvedsssecviacsteescinvniononan 28

People v. Holmes, 304 A.D.2d 1043 (3d Dept. 2003)......... 20

People v. Howard, 90 Misc.2d 662 (Sup. Ct. N.Y. Co.

1977) .0:<s0csessessessescedeusussssersbenszelaeasbaialanannae 26

TABLE OF CASES -— Continued

Page

People v. Huntley, 15 N.Y.2d 72 (1965)... eee 29

People v. Johnson, 88 Misc.2d 749 (Co. Ct. Onon-

i, SO Mcvistensentiincenidtiiatianiprtinacibiaicsenlantiidataiities —_— 26

People v. Killian, 74 Misc.2d 120 (Co. Ct. Nassau

Gaui. SeePU TI iicsiaaiiacnienceidhcdiudbaniniaiisiideiiipniéniieaniioumsenuaenioneaata 26

People v. King, 232 A.D.2d 111 (2d Dept. 1997)................ 28

People v. Levan, 91 A.D.2d 384 (1st Dept. 1983).............. 28

People v. London, 124 A.D.2d 254 (3d Dept.),

lv. denied, 68 N.Y.2d 1001 (1996)... ceeceeeeeeeeeeeteeeee 26

People v. Lord, 104 Misc.2d 150 (Crim. Ct. Kings

Sa, Get inthdeichivrsnthevcienanlenaauibeniamaicbeceiinheaisiceemients 26

People v. Mars, 266 A.D.2d 316 (2d Dept. 1999)............... 21

People v. Marsh, 20 N.Y.2d 98 (1967) ..............cccesecseeseeeees 28

People v. Mineo, 85 Misc.2d 919 (Sup. Ct. Kings Co.

PIIIDED vcinsscncsentiniiucrevntintsteaanietiesmneriamnnsaniaieniatds 27

People v. Natal, 75 N.Y.2d 379 (1990)............cccceeeeeeeeeseeees 27

People v. Patterson, 78 N.Y.2d 711 (1991) .......sss:ssseess00 26

People v. Perel, 34 N.Y.2d 462 (1974)...........ccccscscecceeeeeeeees 27

People v. Peters, 135 A.D.2d 841 (2d Dept. 1987) .... 9, 23, 26

People v. Ramirez-Portoreal, 88 N.Y.2d 99 (1996)............ 27

People v. Randt, 142 A.D.2d 611 (2d Dept. 1988) ....... 26, 28

People v. Rios, 171 A.D.2d 582 (1st Dept. 1991)............... 10

People v. Rodriguez, 167 A.D.2d 326 (lst Dept.

ET siineincedccnsanauneesen’ Noah uiienseningiadeadsasionenaadchinlanseanenes 10

viil

TABLE OF CASES - Continued

Page

People v. Rosario, 136 Misc.2d 445 (Crim. Ct. Bronx

eee SEED csearereedeennpeleeenaedaaniaiadisusseicenssnamaabieeeecooeda 22

People v. Rumph, 128 Misc.2d 438 (Sup. Ct. Kings

Sah Se IE dcviirccincinednetecisneniaceabapamonialiieianaiitienaaunnninie 26

People v. Sallow, 100 Misc. 447 (Ct. Gen. Sess. N.Y.

rks Aa Eccccsiecnbudanisetninieiensteaadadieipinieadictaemninemmanintahas 27

People v. Scarola, 71 N.Y.2d 769 (1988).............cccceeseeseees 23

People v. Sirmons, 242 A.D.2d 883 (4th Dept. 1997),

lv. denied, 92 N.Y.2d 1038 (1998) ..............ccccssesseseeeneeees 21

People v. Siu Wah Tse, 91 A.D.2d 350, lv. denied, 59

Ein Ue UT 1 AIEEE cnisctediaescinslensiaibnbaiaansebenenenclaakabisianlaasensiiceens 16

People v. Skinner, 53 P.2d 720 (Colo. Ct. App. Div. V,

SUITE scsedicndelsideniecnssbenitaeteusietnaaaiiaallaniabiiniaaandaialdiensciaeenenes 29

People v. Slavin, 299 A.D.2d 499 (2d Dept. 2002)............. 18

People v. Slavin, 100 N.Y.2d 566 (2003).............cccccceeeeeees 19

People v. Slavin, 1 N.Y.3d 392 (2004)..............cccccceeeeeeeeeees 19

People v. Smith, 59 N.Y.2d 454 (1983) .0........ ccc eeeceeeeeeeee 28

People v. Smith, 86 A.D.2d 251 (3d Dept. 1982)......... 23, 26

People v. Spruill, 299 A.D.2d 374 (2d Dept. 2002)...... 21, 28

People v. Stith, 69 N.Y.2d 313 (1987).............cccccseeeeeeeeeeees 22

People v. Suarez, 298 A.D.2d 218, lv. denied, 99

i EE En ETEITIET sins cs cathecaichdhesdanpesadessaceciavnennaeaenciibesnciuiaiiois 23

People v. Taylor, 294 A.D.2d 825 (4th Dept. 2002)............ 28

People v. Tejada, 93 N.Y.2d 963 (1999) ............cceeeeeeeeeeees 27

People v. Torres, 291 A.D.2d 273 (1st Dept.),

lv. denied, 98 N.Y.2d 681 (2002) 0.0.00... eeesseeeeeeeeeeeeeees 26

—Seeee

1x

TABLE OF CASES - Continued

Page

People v. Turiago, 90 N.Y.2d 77 (1997)..............ccceceeeeeseeees 22

People v. Walls, 277 A.D.2d 959 (4th Dept. ZUUU),

lv. denied, 96 N.Y.2d 808 (2001) ..............cceccecseeeseeseeeeees 26

People v. Weintraub, 35 N.Y.2d 351 (1974)... eee 28

People v. Whitaker, 64 N.Y.2d 347, cert. denied, 474

Se IIIT cohsinscnithicniiccananaiusiconsrusnibsoteintanisesatnietee 26, 27

People v. Williams, 170 A.D.2d 552 (2d Dept.),

DR, GROG, FE Be. Cee BA (ROSE) cece vescescecavccsccecccsnsccszess 26

People v. Witherspoon, 27 [1].2d 483, 190 N.E.2d

Ry GEL ED sisnsenctistbascicccaiipcaecusiannjentinienadicans 30

Prudential Securities v. Brigianos, 233 A.D.2d 18

CITI: TINIE cna ca.ciachinustaslihbliesuahasiiicebatbaemasdenseshiotenindes saline 22

R.A.V. v. City of St. Paul, Minnesota, 505 U.S. 377

IIIT cclvcishiees tn detteianaicniidinbiadiddalnelhatndiadasaianaeveaniiwanetasuanueaeitaes 24

Rochin v. California, 342 U.S. 165 (1952)... eee 27

Schmerber v. United States, 384 U.S. 757 (1967). 9, 20, 23, 27

State v. Bowden, 113 R.I. 649, 324 A.2d 631 (Sup.

LG aE, EE sphucilicaisksucekaieusanth diseinaiiaeedclaannensuanwinwesenbaas 30

State v. Lee, 51 N.C. App. 344, 276 S.E.2d 501 (N.C.

Bh I ITT ki acicclli Mar as cneieseleabenebmnneaabaneeabereenetes 30

State v. Macias, 481 So.2d 979 (Dist. Ct. App., 4

Dist., 1986), aff’d, 515 So.2d 206 (Sup. Ct. Fla.

SII Ti UiT ituacaai cc lihdieaia saltaadiakeandaeaaieeensbacosansadbeaniuaeeabeneniads 30

State Medical Lic. Bd. v. Brady, 492 N.E.2d 34 (Ct.

SN I I II scars ccccncrensasuvetevccopeesentivicrsenses 25

State v. Novak, 949 S.W.2d 168 (Mo. App. 1997).............. 29

State v. Phelps, 197 W.Va. 713, 478 S.E.2d 563................ 30

TABLE OF CASES - Continued

Page

State v. White, 348 S.C. 532, 560 S.E.2d 420 (Sup.

Be NN PI dada van scarel ac dacpticcdeeedeindscdnirenninidninen aenencs 25

Texas v. Johnson, 491 U.S. 397 (1989)... eee eee eens 24

United States v. Dionisio, 410 U.S. 1 (1973)..........0.... 23, 26

United States v. Esdaille, 769 F.2d 104 (2d Cir.

at Raines Paeeeee ten SE See ene LON ROE ome O NE 23

United States v. Hubbell, 530 U.S. 27 (2000)....... 19, 20, 22

United States v. Robinson, 414 U.S. 218 (1973)............... 27

United States v. Wade, 388 U.S. 218 (1967)........... 9, 23, 26

Winston v. Lee, 470 U.S. 759 (1985) 0.0... cece eeeceeeeeeees 27

Wisconsin v. Mitchell, 508 U.S. 446 (1993)..........0000... 24, 25

Yarkew v. Sinclair, 495 F.Supp. 1248 (D. Minn.

SIT ccc aaedicaratsdsatisstsdshaaaenoadeaknca wammsolmuandounnenuannidenneeasa 25

PRELIMINARY STATEMENT

This brief is in opposition to a petition for certiorari to

the New York State Court of Appeals from a decision dated

February 7, 2004, which affirmed an Order and Memoran-

dum Decision of the Appellate Division of the Supreme

Court, Second Department, entered November 18, 2002,

which affirmed petitioner’s criminal conviction for two

counts of Attempted Murder in the Second Degree, one

count of Assault in the First Degree, one count of Assault

in the Second Degree, and two counts of Aggravated

Harassraent in the Second Degree, after jury trial, in the

County Court of Suffolk County (Cacciabaudo, J.). On

November 18, 2002, petitioner was sentenced to three

indeterminate and concurrent terms of imprisonment from

twenty-five years to life on the first three counts, and

concurrent terms of seven years, one year and one year on

the remaining three counts. He is currently incarcerated

at the Clinton Correctional Facility in Dannemora, New

York. Petitioner’s codefendant, Ryan Wagner, is also

currently imprisoned, after his separate trial similarly

resulted in conviction.

STATEMENT OF FACTS

Background

On September 17, 2000, a vicious assault on two

Mexican immigrants fortunately did not result in their

death. But the severity of the unprovoked attack upon

them cannot be seriously questioned. The Court properly

allowed the jury to consider photographs of petitioner’s

tattoos, taken after his surrender, because they were

relevant to his motive for choosing to isolate and nearly

kill two Mexican day laborers. No federal constitutional

rights were violated in obtaining this conviction and

certiorari should be denied.

The Deception

On September 17, 2000, around 6:15 a.m. in Farming-

ville, New York, Magdaleno Estrada Escamilla and Israel

2

Perez Arvizu were home asleep. One of their housemates,

Mario Mendoza, had work lined up for that day and was

waiting for his prospective employer to pick him up at the

7-Eleven store. Two people in a car told him they were

looking for two workers (257).' During Mendoza’s conver-

sation with the petitioner, who was not driving, Mendoza

mentioned that some of his housemates could work that

day. Petitioner suggested that Mendoza come with them in

the car and show them the house.

Mendoza entered the car through the rear passenger

side door and the car door stuck a bit so he had to pull

hard to open it (259). They drove to his nearby house and

Mendoza went inside to see if any of his friends wanted to

go to work. The second person he asked «vas Estrada, who

agreed to go. He then woke up Perez. After a brief conver-

sation between Ferez and Estrada, Mendoza told them to

come outside so they could make arrangements with the

two men in the car (261-262).

Mendoza and Estrada left the building together and

Estrada started to talk to its occupants. Mendoza left and

started walking back to the 7-Eleven store. Before he

reached the store, he noticed the car, now with four indi-

viduals occupying it, pass him. The car in question was a

gold Ford Taurus station wagon with a blue interior

strewn with garbage. It had an automatic transmission

with the shift lever on the steering wheel (268-269). The

passenger in the car had pointed out the shovels in the

back of the station wagon. One of the tools was a two-

handed implement for digging holes and removing dirt

(271, 275-276). Mendoza identified a photograph of the car

he had ridden in that morning (377). He distinctly remem-

bered the right rear passenger door because it was dented

and difficult to open (259, 277-278, 280).

* Page numbers refer to the trial transcript.

The Victims

Perez illegally immigrated to the United States in

July 2000. He worked some days as a day laborer, part of a

group of individuals who wait at street corners in Farm-

ingville for contractors to hire them. On September 17,

2000, he was living at 243 Berkshire Road in Farming-

ville, with several other Mexicans, including Estrada and

Mendoza (493-494, 501).

Estrada illegally immigrated to the United States in

January 2000. He moved to Farmingville for the summer.

He worked digging holes for light poles (669-671).

The Attack

When Mendoza awoke Perez, he agreed to go to work.

Mendoza told him that his prospective employers, two

Anglo-Saxons (one being petitioner) were waiting outside

in a car (503-504, 674-675). Perez saw petitioner sitting in

the front passenger’s seat of the car and Estrada behind

Ryan Wagner, the driver. With some difficulty, he opened

the rear door on the passenger’s side and got inside.

Following introductions in the car, peti‘ioner asked if they

were Mexicans. They replied yes (507, 677). Petitioner

asked Estrada if he had a driver’s license. Estrada said no

and asked if it was difficult to get one. Petitioner showed

his driver’s license to Estrada (677).

Wagner drove to a 7-Eleven at Exit 64 of the Long

Island Expressway. Wagner, Estrada and Perez got out

while petitioner stayed in the car. Wagner paid for coffees

and they all got back into the car. Perez and Estrada were

asked if they liked beer. Wagner said he had been to

Cancun (507-508).

When the car arrived at an abandoned building site,

petitioner, Perez and Estrada got out and removed two

shovels, a post-hole digger, and a tire iron from the back of

the car. Wagner parked nearby. Petitioner led Estrada and

Perez towards the rear of the building (509-512, 678). As

they were walking, Estrada was concerned about how

abandoned the building i:coked Perez tried to allay his

4

fears (518, 678, 683). Wagner told them to start cleaning

up the basement. They complied using the tools Wagner

had removed from the car, including the post-hole digger

which was described as a double shovel used to make holes

in dirt (518).

Perez and Estrada began working and petitioner left

the basement. He and Wagner returned shortly thereafter,

approaching the two men from behind. Suddenly peti-

tioner hit Estrada with the post-hole digger in the back of

the head. Estrada fell and Perez thought that the hard

blow might have killed his friend. Meanwhile, Wagner

came at Perez with a folding knife, cutting him on the

hand. Perez dropped the shovel and backed away while

Wagner advanced with the knife. Simultaneously, Perez

could see petitioner beating Estrada. Perez began to run,

precipitating a scream from Wagner “He’s getting away!”

(520-521, 684).

As Perez got outside the building, his muddy boots

caused him to slip and fall but only his left hand touched

ground (606, 651-654, 658). As he got back up on his feet,

petitioner caught up with him and delivered a glancing

blow with the post-hole digger to the left side of Perez’s

head. Perez screamed, “Help me!” Estrada got to his feet

and ran towards petitioner. Perez noticed Wagner again

advancing towards him with the knife. He picked up a

stick to try to defend himself, but he dropped it when

Wagner cut him on his shoulder and hand. Estrada man-

aged to hit Wagner in the back, prompting him to run.

When Estrada returned, he helped Perez run towards the

Expressway (518-523, 603-609, 634-637, 685-686).

Immediate Assistance

Estrada and Perez reached the expressway around 7:00

a.m. Some cars swerved away, but Steven Serrecchia

stopped to help. He used a fan belt to stop the blood gushing

from Perez’ right wrist (64-69). Soon Deputy Sheriff James

Rochford came on the scene, and he applied bandages to

both arms of Perez (81-90). At 7:11 a.m., Officer Brian

Connelly responded to the emergency call. He observed

5

pools of blood below the wrists of Perez. Officer Connolly

contacted a Spanish speaking 911 operator who could

translate for the victims (118-225). Officer Jeffrey Klug was

dispatched to search the abandoned building for evidence

(105-117). Lew Morgenstern was an EMT who recognized

the need for advanced life support. Perez went into the first

ambulance. Estrada followed in another (188-198). They

were both brought to Brookhaven Memorial Hospital.

The Hospital

Lillian Lopez, a certified emergency nurse, and Doctor

Shari Becker tried to control Perez’ bleeding in the emer-

gency room, but it made inspection of the wounds difficult.

Perez had a deep cut on his right wrist, a slash on his left

forearm, another slash on his face to his right ear, and two -

more cuts on his left shoulder (524-527). After applying a

tourniquet, the bleeding slowed sufficiently to observe that

it was the ulna artery and that there was tendon and

muscle damage five centimeters deep to the victim’s bone.

They determined the wrist wound to be life threatening.

Forty minutes after arrival, the bleeding vessel was

ligated by Doctor Prichip (1414-1416, 1447-1455).

Doctor Kenneth Kneessy was the plastic surgeon who

repaired many of Perez’ injuries, including the lacerated

tendon, another partially severed tendon, and the cuts in

the medial nerve. He also considered the injuries to have

been life threatening (1483-1488). Doctor Alan Nemeth, a

physician specializing in emergency medicine at Brook-

haven Memorial Hospital, treated Estrada (1432-1435).

The victim had a two centimeter wound on the back of his

head and complained of back, neck and shoulder pain

(1435). In the physician’s professional opinion, a single

blow to the back of the head could have caused death

(1437). Perez would later testify about the residual pain of

his injuries, lasting more than a year after the assault

(528, 543). He endured extended medical attention includ-

ing rehabilitation (529-530). The weakness in his right

hand prevented him from working for three months (544-

545).

The Investigation

On September 17, 2000 around 8:00 a.m., several

police officers responded to an abandoned building on

Napcon Drive in a Shirley industrial complex (432). As

Officer Peter Reilly and his partner, Officer McLaughlin,

drove near the building, they encountered a green minivan

parked on the south side of the road. Because they consid-

ered it odd to find a vehicle there at that time of day, they

pulled in behind the vehicle. One of the occupants got out

and asked if it was okay to walk his dog there. Officer

Reilly replied in the affirmative (433-434). The officers

then continued to the abandoned building and met with

Officer Jeffrey Klug.

As Officer Klug was leaving the industrial complex he

also noticed the green minivan parked on the shoulder of

the road (470-472). He considered it odd that none of the

occupants of the van looked at him as he drove by. He

discerned them to be three white males. Officer Klug

stopped and noted the plate number to run a registration

check at 8:14 a.m. (472-474). When the minivan made a

u-turn and passed him, he followed it (474-475). After

following the minivan onto the Long Island Expressway

going west, Officer Klug turned back at Exit 67 (478-480).

Later that same morning, Officer Klug learned the mini-

van was registered to a Ronkonkoma business called Delta

Well and Pump Company (479).

At about 8:00 p.m. that day, Detective Allen VanWick-

ler followed up on the green minivan plate number. At

Delta Wells on Union Avenue in Holbrook, he spoke with

Donna Bensin, the president of the company. She initially

claimed that she knew nothing about the vehicle with the

indicated license number, but when a one-letter correction

was made, she acknowledged corporate ownership of the

green minivan (1064-1065). She promised to find out who

had been using it (1066). Around two hours later, Detec-

tive VanWickler received a call from Peter Horvath, who

stated that he, Wagner (whom Horvath claimed to only

know by first name), and petitioner had used the van for a

7

dog run (1067). Horvath said petitioner suggested the

industrial park instead of the beach (1067).

VanWickler also spoke to petitioner on the phone that

night. Petitioner gave his address as 66 Old Country Road,

Melville, even though it was his girlfriend’s parents’ home

and not his residence. He also denied knowing Wagner’s

last name. Asked why they chose to run dogs there, peti-

tioner admitted knowing that area as a previous job site

where he had worked (1077-1078).

On Sunday, September 23, 2000, VanWickler went to

66 Old Country Road in Melville and met Karl Bensin, the

head of Bensin Construction. His daughter, Amy Bensin,

was petitioner’s girlfriend (1079-1080).

After interviewing Karl Bensin and his wife, Detective

VanWickler and his partner drove to 182 Union Avenue

and observed a white Lotus parked in the driveway. They

also noted a red Honda with a Pennsylvania license plate

and a white Ford Taurus station wagon. They recorded all

three licenses for registration checks (1081).

Evidence Analysis

Officer John White processed the broken post-hole

digger and recovered two hairs from the tool, as well as

some blood (815).

On October 3, 2000, Officer White participated in

executing a search warrant on petitioner’s 1990 Ford

Taurus, with instructions to dust the car for fingerprints

(822). His examination revealed scrape marks along the

exhaust pipe of the vehicle, which was consistent with the

victim’s statements that the car had scraped its undercar-

riage before the tools were removed from the car (768,

828).

Ann Juston, a forensic scientist, performed DNA

analysis on a number of samples associated with this

crime and compared them with four known samples

previously obtained from petitioner, Wagner, Perez and

Estrada. A swab obtained from the area of the assault

matched the DNA sample received from Estrada (1000).

8

The saliva stain obtained from the lip area of a 7-Eleven

coffee cup found floating at the scene also matched |

Estrada’s DNA profile (1002). The swab from the handle of |

the post-hole digger and from the metal portion of the

post-hole digger matched the DNA profile of Perez (1002,

1004). Two stains recovered from the driver’s seat of the

Taurus matched the DNA profile of Ryan Wagner (1005).

Thomas Saveski, a forensic scientist, examined hair

from petitioner, Wagner, and Perez. Petitioner and Wagner

both had Caucasian hair with Wagner’s hair being dyed a

lighter color. Perez had hair of a mixed racial origin. The

hair found on the post-hole digger was also of mixed racial

origin so it did not come from petitioner or Wagner but

could have come from Perez (1120-1138).

Donald Doller, a forensic scientist, examined several

items, including five pairs of known footwear. One pair

came from each victim, one pair of boots belonged to

petitioner, and two pairs were from Ryan Wagner (1148-

1160). Doller compared the prints produced by those boots

with questioned footprints on various items recovered

from the crime scene. One print, the outline of a shoe, was

consistent with the size 9 right boot worn by petitioner

(1161). During his examination of the 1990 Ford Taurus

station wagon, Doller noted that the right rear passenger

door was difficult to open and made a noise because of a

dent (1167). He also confirmed that the tire iron found at

the scene came from a Ford (1168).

Pre-trial Decisions

After a mysterious absence from Suffolk County

between September 19, 2000 and November 1, 2000,

petitioner surrendered with his attorney to the Suffolk

County District Attorney’s Office. Co-defendant Ryan

Wagner had already surrendered on October 10, 2000.

Petitioner’s attorney informed the prosecution that his

client would not be making any statements. During the

arrest process, police officers photographed petitioner and

his tattoos. Subsequently, defense counsel moved to |

suppress the tattoo photographs, arguing, inter alia, that |

ee

9

their taking and use violated petitioner’s constitutional

rights under the Fourth, Fifth and Sixth Amendments to

the United States Constitution. The prosecutor argued

that arrest photographs were proper but also moved to

have a second set of photographs taken pursuant to court

order under New York State Criminal Procedure Law

§240.40(2)(b)(iv) and (v) as non-testimonial exemplars.

On February 26, 2001, the County Court of Suffolk

County (Cacciabaudo, J.) issued a Memorandum Decision

denying petitioner’s motion for suppression of the photo-

graphs and granting the motion for court-ordered exem-

plars. The court noted that probable cause was not in issue

because petitioner had surrendered. The court rejected the

argument that a subject in custody has a legitimate

expectation of privacy, which would prevent the photo-

graphs in question. Photographing tattoos was held to be a

minimal intrusion that, under the Fourth Amendment,

was neither an unreasonable search and seizure nor a

violation of the right to privacy. Relying on Schmerber v.

United States, 384 U.S. 757 (1966) and People v. Peters,

135 A.D.2d 841 (2d Dept. 1987), the court held that photo-

graphing physical characteristics was not a taking of

testimonial evidence subject to the Fifth Amendment

privilege against self-incrimination and that such arrest

processing was not a critical stage requiring the presence

of counsel under the Sixth Amendment. Finally, the court

granted the request for the retaking of photographs of

petitioner’s tattoos as nontestimonial evidence for proof of

his motive to commit the crimes charged.

Following a Wade hearing held on May 30 and June 6,

2001, the County Court held, in a decision dated June 8,

2001, that the lineup identification of petitioner by Perez

on November 2, 2000 was not suggestive and would be

admissible at trial. Photographs of the lineup would also

be admissible.

On July 26, 2001, defense counsel submitted a motion

in limine to preclude any tes.imony about or photographs of

the tattoos because they were irrelevant and prejudicial. At

this hearing, defense counsel made the following objections

10

to the tattoos, all of which were considered prior to jury

selection: (1) that the tattoos had no relevance; (2) that the

tattoos were communicative and not for purpose of identifi-

cation; (3) that expert testimony about tattoos would be

unable to connect the meaning of the tattoos to the crime

charged; (4) that white supremacy ideology was collateral to |

the issue of guilt; (5) that Nazi insignia are anti-Semitic but :

not necessarily anti-Hispanic; (6) that creation of the

tattoos was too remote for them to be admissible for acts

committed five to seven years later; (7) that the tattoos

were more prejudicial than probative; and (8) that these

tattoos should be treated like evidence of uncharged crimes

which required a pre-trial hearing on admissibility.

The prosecution opposed the motion by oral argument

and responded that it is permissible to display relevant

tattoos in court and identification was not the sole basis

for admissibility, citing People v. Rodriguez, 64 N.Y.2d 738

(1984); People v. DiBella, 277 A.D.2d 699 (3d Dept. 2000),

lv. denied, 96 N.Y.2d 758 (2001); People v. George, 227

A.D.2d 316 (1st Dept. 1996); People v. Rios, 171 A.D.2d 582

(1st Dept. 1991); People v. Rodriguez, 167 A.D.2d 326 (1st

Dept. 1990); and People v. Baez, 131 A.D.2d 687 (2d Dept.

1987). The point was also made that Nazis hated all non-

Aryans, not just Jews. The court was asked to adhere to

its prior ruling on the tattoos. The prosecutor declined to

seek a pre-trial ruling for petitioner’s tattoos as admissible

prior bad acts. The court denied the motion in limine in a

written decision on September 10, 2001.

Trial

In her opening statement, the prosecutor outlined the

evidence to be presented and explained that the tattoos

would not be introduced to identify petitioner but to l

explain his state of mind and motive for the crime.

After describing the deception and the attack, Perez |

described the car in which he rode to the crime scene as a

gray four door Ford Taurus, with blue interior and a rear

passenger side door that was difficult to open. He identi-

fied a photograph of petitioner’s car as the same car he

— -

|

SS

11

rode in that day (540). Perez also testified that he picked

petitioner out of a lineup composed of six similarly attired

individuals all wearing glasses on November 2, 2000. He

had also identified Ryan Wagner in a lineup on October 11,

2000. He testified that these were the two men who

attacked him and Estrada.

When Estrada testified, he described the crime but

made no in-court identification. He had been unable to

identify either petitioner or Wagner at lineups held on

March 2, 2001, six months after the crime, which was

when he was brought back from Mexico.

In addition to the testimony of the victims, the law

enforcement personnel, and the civilian witnesses, which

has already been described, several acquaintances of

petitioner also testified.

In September 2000, Peter Horvath had been friends

with petitioner for seven years. They lived with their

respective girlfriends, Anna Barna and Amy Bensin, at

182 Union Avenue in Holbrook. On September 16, 2000

the four of them had gone on a fishing trip organized by

Bensin Contracting, after which they had returned to 182

Union Avenue in Bensin’s mother’s green minivan (300-

301). At about 6:00 p.m., while Horvath and petitioner

were alone in the house, they heard loud Spanish music

coming from a band at the house across the street. Peti-

tioner called the police who came to the house-aeress-the

street in twenty minutes and then the music stopped (293,

296, 299-306, 315-317).

While it was still dark on the morning of Sunday,

September 17, 2000, Horvath saw Ryan Wagner twice. The

first time was when the sensor light on the first-floor deck

~ outside his room turned on. He walked outside and saw

Wagner. Horvath asked him what he was doing standing

next to the deck. Horvath suggested that Wagner should

go home and go back to bed (317, 320-325).

Horvath next saw Wagner at 7:45 that morning.

Petitioner came to Horvath’s room and asked if he wanted

to join them for a dog walk. Horvath agreed and drove the

green minivan belonging to Donna Bensin. Wagner was in

12

the front passenger seat, and petitioner sat in the back.

Horvath followed petitioner’s directions to Exit 68 on the

Long Island Expressway, ultimately turning into an

industrial park. While they were stopped but stili inside

the van, a police car pulled in behind them. Petitioner

asked about walking the dog (320-329, 332-334).

Shortly after 10:00 p.m., Horvath was awakened in

his room by petitioner and Bensin. The police were asking

about the van and Horvath had been the driver. Reluc-

tantly, he called Detective VanWickler and told him that

he and two others had been in that area. Because he did

not have a valid driver’s license, Horvath told the police

that petitioner drove the van (340-346).

Horvath had no idea where petitioner went between

the day after the attack and the day before petitioner

surrendered about six weeks later. During Horvath’s

acquaintance with Wagner, Wagner drove two cars, one of

which was petitioner’s Ford station wagon. That car re-

mained parked at 182 Union Avenue while petitioner was

gone. Two weeks after the attack, Horvath and Barna

moved out of 182 Union Avenue and into her parent’s home.

When Horvath finally saw petitioner on November 1, 2000,

petitioner had grown a full beard (347, 361, 407-410).

During his years of friendship with petitioner,

Horvath learned that they shared personal beliefs on

many issues (411), including their heritage. He knew

petitioner studied the Bible. Horvath testified that Chris-

tian Identity was based on a biblical interpretation that

Abraham and the other patriarchs of the Bible were of

European descent. As a Christian Identity follower,

Horvath believed people of European descent should stick

together and he believed petitioner felt the same way.

During discussions about “[their] people,” i.e., white

people, he and petitioner had discussed the ten northern

tribes of Israel. Petitioner had also expressed his belief

that Europeans should stick together and keep apart from

non-European races (411-416).

Horvath identified People’s Exhibits 19 through 34 as

photographs of tattoos that were on petitioner’s body in

13

September 2000, the most recent being about five years

old (374, 384-386, 393-397).

Anna Barna was Horvath’s girlfriend. She corrobo-

rated Horvath’s testimony about the living arrangements

at 182 Union Avenue and about petitioner calling the

police to complain about the loud music (1023, 1027-1031).

On the morning of September 17, 2000, Barna heard

someone leave the house at 6:30 a.m. Around 8:00 a.m.,

petitioner came into the downstairs bedroom and asked

Horvath if he wanted to take the dogs for a walk. Barna

heard petitioner say “I know a good place for a run.” Barna

saw Horvath, his dog, petitioner and Wagner before they

left. She had met Wagner about eight times and knew him

as petitioner’s friend. She saw a new cut on Wagner’s

knuckles and asked him if he was okay. Wagner told her

“Don't worry about it”. Petitioner told her they would not be

back right away. They left in the green minivan but re-

turned about ninety minutes later. Wagner stayed for about

another hour and then he left by himself (1036-1041).

Barna testified she was familiar with petitioner’s

religious beliefs because they had spoken about peti-

tioner’s literal understanding of the Bible. She also re-

membered him complaining that the Government does

nothing about undocumented day laborers. This comment

was made after he read a news article several months

before September 2000 (1047-1048, 1053).

Amy Bensin had been petitioner’s girlfriend for about

five years. They had lived together for four years, two

years at 182 Union Avenue. On September 17, 2000,

Bensin saw petitioner and Wagner in the kitchen at 182

Union Avenue at about 7:00 a.m. Before petitioner left, he

asked if anyone wanted breakfast. They were gone much

longer than necessary for getting breakfast. Bensin was

mad they had taken her mother’s van for so long. She

asked them where they had been but did not-get an

answer (1225-1236).

When her mother called that evening, Bensin put

petitioner on the phone. She remembered he told her

14

mother they used the van to take the dog for a walk (1210-

1211, 1225-1240).

The next morning, Bensin left for work without seeing

petitioner. She came home around 4:00 p.m. and watched

television with petitioner. They saw a story about two

Mexicans getting hurt. He mentioned he was going to visit

his sick grandfather but that was the first time * had

heard there was some illness. Petitioner did not say good-

bye and she never saw him again «until the trial. His car

remained parked at 182 Union Avenue from September 18

to November 2. Petitioner did call her two or three times

but only reached her answering machine. She never learned

where he went (1222, 1242-1243, 1250-1255, 1260-1265).

Bensin said she knew nothing about petitioner’s

religious beliefs but she knew he believed the races should

stay separate. She had also heard him use racial epithets

(1274-1281).

Cornelius Collins was petitioner’s immediate supervi-

sor at Bensin Contracting, had sponsored petitioner’s

application to the Plumbers’ Union at th» request of Amy

Bensin’s father. One of the Bensin Company job sites was

located in the same Shirley industrial site as the scene of

the crime. Petitioner had worked at that Shirley site for

two to three weeks prior to September 17, 2000. Collins

last saw petitioner at work on Monday, September 18,

2000. The next day petitioner did not show for work.

Collins never heard any explanation about why he stopped

working (1282-1289).

Karen Evans, a Verizon investigator, authenticated

telephone company records relating to certain New York City

pay phones located in the same general vic_nity ranging from

50th to 53rd Streets and between Sixth and Seventh Ave-

nues in Manhattan. Evans also authenticated telephone

records for a Hess gas station at 301 Union Avenue in

Holbrook. She identified the phone number 631-467-7823 as

being assigned to Donna Bensin at 182 Union Avenue in

Holbrook. She identified the phone number 718-894-3869 as

belonging to Dennis Wagner at 59-57 60th Lane in Mas-

peth, Queens. 718-894-6993 was assigned to Arpol Karlson

15

in Maspeth. A 917 number could only be identified as going

to a cell phone or pager. Nineteen phone calls were corre-

lated by Detective Investigator Thomas McDermott and

summarized to likely be frequent calls between petitioner

on Long Island and Wagner in New York City.

James O’Mara, a supervisor employed by AFD Con-

tracting Furniture, authenticated his company’s records,

which showed that Ryan Wagner was making a delivery at

olst Street near Seventh Avenue in Manhattan on Septem-

ber 18, 2000, the day repeated telephone calls had origi-

nated from that area to 182 Union Avenue (1631-1635).

Mid-trial Hearing

In camera, an extensive discussion ensued regarding

the proposed expert testimony of a New Jersey investiga-

tor with knowledge about skinheads and white suprema-

cists. Defense counsel argued that these were not scientific

topics and that no one should be qualified as an expert

about them, especially a police officer. He also urged that

the tattoos should not be considered evidence at all but,

once they were admitted, the proposed expert testimony

was improper bolstering. He pointed out that there was no

connection between petitioner and any gang activity. Co-

counsel for petitioner noted that since tattoos were art

with multiple interpretations, the expert testimony was

not helpful because swastikas and SS lightning bolts were

not beyond the ken of a typical juror. He also posited that

the First Amendment should protect petitioner’s private

thoughts about his tattoos (1397-1400, 1539-1548).

The prosecution countered that expert testimony was

needed to explain that a white fist meant white power,

that the initials NYHC had to be interpreted for the jury

since New York Hate Corps was not common knowledge

for a typical juror, and that the tattoos, by themselves,

were not testimony so expert testimony was needed to

o~plain them. Despite being over five years old, the tattoos

were still relevant to petitioner’s state of mind. The

prosecutor agreed that there would be no proof that

petitioner had any gang connection (1549-1554).

16

The court ruled that the expert could not testify what

petitioner may have been thinking but only what the

tattoos appeared to mean. The court held that the tattoos

relevance to the Aggravated Harassment counts out-

weighed any unfair prejudice. The court agreed to give a

limiting instruction for the expert testimony so the process

would be fair overal! (1554-1555, 1557-1559).

Prior to testifying before the jury, Sergeant Louis Jordan

was questioned in a mid-trial hearing to establish the scope

of his expertise. After delineating his credentials, Jordan

claimed expertise in white supremacy, motorcycle gangs,

satanic cults, street gangs and prison gangs (1575-1593).

Defense counsel renewed his Fifth Amendment

argument and the Court again rejected it, relying on

People v. Siu Wah Tse, 91 A.D.2d 350 (1st Dept.), lv.

denied, 59 N.Y.2d 679 (1983). The Court ruled that expert

testimony could be based on personal experience without

scientific study as long as it is helpful to the jury. Thus,

the expert could testify about the meaning of certain

tattoos. The Court prohibited the expert from testifying

that petitioner’s tattoos made him a member of any

particular group or that the tattoos meant petitioner

shared the beliefs of any particular group (1624-1628).

The Expert

Louis Jordan testified before the jury about his

expertise. His testimony has been set forth on pages 38a-

64a of the petition for certiorari. The court qualified

Jordan as an expert in white supremacy groups and gangs,

including tattoos (1644-1664).

Jordan was shown ten photographs of petitioner’s

tattoos (Peopl«’s 21, 22, 23, 25, 26, 27, 28, 29, 30, and 32).

He described what the various tattoos depicted and how

various parts of each tattoo could be recognized as mean-

ingful to a white supremacist (1665-1675).

People’s 22 used red and black (the colors of Nazi

Germany) and the Nazi swastika with a white fist, which

17

Ineance While power, Mere was aisu a GDeilur wauuyy wakavak

indicated northern European ancestry (1665-1666).

People’s 21 depicted a kneeling person with a large

mose. @ beanie cap, and a coat with money sticking out.

This represented a Jewish person. Approaching him, a

skinhead was aiming to kick him. The skinhead was

identifiable from the Doc Martin boots, rolled up pants,

and red suspenders. He held an axe, a bottle of alcohol,

and bore a sinister, clown-like visage (1666-1667).

People’s 32 also used red and black letters for Nazi

reference. The letter “FTW” stood for “Fuck the World,” a

common phrase among gangs and white supremacist

groups. “NYHC” referred to the New York Hard Core also

known as the New York Hate Corps. They were a punk rock

band that played music featured by skinheads (1668-1669).

People’s 23 was the tattoo on the back of petitioner’s

neck. The letters “ACAB” stood for “All Cops Are Bastards”

which is a well known lyric sung by a punk rock band

known as the Four Skins. The name of the song is “The

Good, the Bad, and the Four Skins” (1669-167 0).

People’s 28 showed an arrow coming up out of a cloud

or body of water. This was an ancient Norse rune known as

a “Teawas.” It stood for justice and was commonly used by

Vikings on their weapons and armor. Below the rune was a

Viking ship and the Celtic sign for infinity (1670-1671).

People’s 30 also depicted a Viking ship with many

shields along the side. This meant pure white chosen

people (1671-1672).

People’s 29 had a Viking blowing a horn. The warrior

stood for white power. There was also the Celtic sign for

infinity (1672).

People’s 27 had an American flag above the Nazi

swastika below a cloud. This was a symbol of hatred.

There was another Celtic cross. There was also a skinhead

holding up a club and restraining a pit bull on a leash

wearing a spiked collar (1673).

People’s 25 also combined the American flag, the Nazi

swastika, and a bald eagle. This symbolized strength. Two

18

Npalvissisg- ralts tggnathar was the rune for the Nazi elite

military group known as the SS. This storm trooper

insignia is used by skinhead security forces. The tattoo

also depicted a skinhead wearing braces (suspenders) on a

bare chest and holding a flaming club as he stepped upon

human skeletal remains (1673-1674).

People’s 26 was similar to People’s 25. There was a

Nazi swastika in a cloud, an American bald eagle, the SS

lightning bolts, and a skinhead holding a club. A tank was

crushing human skulls as it emerged from a city on fire

(1675). The People rested after Jordan’s testimony.

Sentence

On October 4, 2001, petitioner appeared for sentenc-

ing in the County Court (Cacciabaudo, J.). Defense counsel

asked for leniency and pointed out that petitioner broke off

the attack and ran away (see sentence minutes, p. 9).’ The

court noted that a juror, after discharge, had been reported

in the media saying the tattoos were not considered during

deliberations. (See sentence minutes, p. 26). Petitioner

was sentenced to three concurrent and indeterminate

terms of incarceratior. from twenty-five years to life in

prison, plus concurrent terms of seven years, one year, and

one year on the other three counts. Petitioner thus avoided

consecutive sentencing for two victims.

Direct Appeal

On direct appeal, petitioner raised numerous issues

including his claim that the tattoos were not relevant and too

prejudicial. On November 25, 2002, the Supreme Court of

New York, Appellate Division, Second Department, affirmed

the judgment of conviction without any mention of the tattoo

evidence. People v. Slavin, 299 A.D.2d 499 (2d Dept. 2002).

* The sentencing minutes were not transcribed until after the

conviction was affirmed by the New York State Appellate Division but

were later provided to petitioner and the New York State Court of

Appeals prior to argument in that higher court.

19

On June 11, 2003, Chief Judge Judith Kaye granted

leave to appeal to the New York State Court of Appeals.

People v. Slavin, 100 N.Y.2d 566 (2003). On appeal from

the Appellate Division, petitioner again raised numerous

objections to the tattoo evidence in his brief and at oral

argument, which was heard on January 8, 2004. On

February 17, 2004, the judgment below was affirmed.

People v. Slavin, 1 N.Y.3d 392 (2004). Four judges agreed

there was no compelled self-incrimination. Two judges

dissented, in part, in an opinion that held there was error,

but that it was harmless beyond a reasonable doubt. The

only reason this was a dissent instead of an opinion

concurring in result was because they would have reversed

the Aggravated Harassment misdemeanors.

REASONS WHY THE PETITION

SHOULD BE DENIED

I. The decision of the New York State Court of

Appeals is in harmony with federal constitu-

tional interpretation of the Fifth Amendment

privilege against self-incrimination and the hold-

ing in United States v. Hubbell, 530 U.S. 27 (2000).

Use of tattoo photographs with expert testimony to

prove the motive for a hate crime is entirely proper.

Throughout the criminal prosecution of petitioner, the

argument was advanced that tattoos that communicate

thought processes are testimonial and thus their use

cannot be compelled consistent with the Fifth Amendment

privilege against self-incrimination. However, use of

statements voluntarily made in the past is not compulsion

of testimony and the New York Court of Appeals so recog-

nized. Using physical characteristics of a defendant’s body

as evidence is clearly permissible under case law inter-

preting the Fifth Amendment. Furthermore, to compare

tattoos to other previously created written statements

such as documents is not a dubious analogy. United States

v. Hubbell, 530 U.S. 27 (2000) is directly on point and was

correctly relied upon by the majority in the decision below.

20

The United States Constitution provides that, “no

person shall be compelfed’ in any criminal] case to be a

witness against himself.” U.S. CONST. amend. V. This

privilege arose in England in response to coerced confes-

sions in ecclesiastical courts. Heretics who confe :sed were

killed quickly and those who remained obdurate were

burned alive. The legal concept does not forbid the use of

incriminating testimony but rather government compulsion

to create such testimony. Thus, the word “witness” limits

the category of compelled incriminating communications to

those that are testimonial in character. United States v.

Hubbell, 530 U.S. 27 (2000); (production of subpoenaed

documents can be testimonial); Pennsylvania v. Muniz, 496

U.S. 582 (1990) (fact speech of drunk driver was slurred

was incriminating but non-testimonial); Doe v. United

States, 487 U.S. 201 (1988) (consent form for disclosure of

unidentified bank documents would not -acknowledge

existence, possession, or authenticity so non-testimonial);

Schmerber v. California, 384 U.S. 757 (1966) (privilege from

production of evidence of testimonial or communicative

nature does not apply to drawing of blood); Holt v. United

States, 218 U.S. 245 (1910) (compelling defendant to wear

specific blouse did not contravene privilege against extorted

communications because there is no exclusion of the defen-

dant’s body as material evidence). Nor does the privilege

bar the seizure of testimonial evidence. The government is

only precluded from compelled creation of incriminating

testimony. Katz v. United States, 389 U.S. 347 (1967); Hoffa

v. United States, 385 U.S. 293 (1966).

Petitioner has focused on the “communicative” aspect

of his tattoos and urged that they are, therefore, testimo-

nial under Schmerber, id. The New York State Court of

Appeals has defined “testimonial or communicative evi-

dence” to be that which reveals a person’s subjective

knowledge or thought processes. People v. Berg, 92 N.Y.2d

701 (1999); People v. Hager, 69 N.Y.2d 141 (1987). However,

it should be recognized that prior voluntary communicative

acts are distinguishable from those communicative acts

which retain the testimonial aspect required under Fifth

Amendment analysis. People v. Holmes, 304 A.D.2d 1043

|

21

(3d Dept. 2003) (tattoo with nickname “Polo” was commu-

nicative but its display to jury was non-testimonial);

People v. Spruill, 299 A.D.2d 374 (2d Dept. 2002) (altera-

tion of tattoo from “Pike” to panther evinced consciousness

of guilt); People v. Mars, 266 A.D.2d 316 (2d Dept. 1999)

(love letters from defendant to non-spouse which were

found by defendant’s estranged husband were admissible

as motive). Prior communications without any testimonial

aspect are outside the constitutional privilege. Crawford v.

Washington, __ U.S. __, 124 S.Ct. 1354 (2004).

Aside from communicativeness, the act of producing

evidence can run afoul of the privilege under certain circum-

stances. Andersen v. Maryland, 427 U.S. 463 (1976) (no

violation where voluntarily created documents were seized

from defendant and authenticated by third person); Fisher v.

United States, 425 U.S. 392 (1976) (defendant’s tax docu-

ments were seized from accountant so no violation of privi-

lege which is personal); Johnson v. United States, 228 U.S.

457 (1913) (party is privileged from producing the evidence

but not from its production); In re Grand Jury Subpoena

Duces Tecum Dated October 29, 1992, 1 F.3d 87 (3d Cir. 1993)

(act of production can violate privilege if existence and

location of evidence unknown to government or where

production will constitute authentication); In re Grand Jury

Proceedings (Johansen), 632 F.2d 1033 (3d Cir. 1980) (private

appointments date books protected from production); Jn re

Grand Jury Subpoena Duces Tecum Dated May 9, 1990, 741

F.Supp. 1059 (S.D.N.Y. 1990) (privilege protects personal

non-business documents); In re Vanderbilt (Rosner-Hickey),

57 N.Y.2d 66 (1982) (act of producing tape recording required

vouching for circumstances of preparation and accuracy

which is implied authentication and privileged); People v.

Copicotto, 50 N.Y.2d 222 (1980) (defendant could be source of

sales receipts because existence and fact of possession known

to prosecution; only more private papers are privileged to

protect inner sanctum of individual feeling and thought);

People v. Beckwith, 303 A.D.2d 594 (2d Dept. 2003) (mari-

juana in pocket of arrestee who admitted possession prior to

Miranda was still admissible real evidence); People v. Sir-

mons, 242 A.D.2d 883 (4th Dept. 1997), lv. denied, 92 N.Y.2d

22

1038 (1998) (alibi evidence discoverable since defendant

already intends to use at trial); Prudential Securities v.

Brigianos, 233 A.D.2d 18 (1st Dept. 1997) (subpoena for

securities documents quashed); Application to Quash a

Grand Jury Subpoena Dated December 28, 1992, 157 Misc.2d

432 (Sup. Ct. N.Y. Co. 1993) (no privilege implication for

discovery that contributes no new knowledge to government

beyond statement itself). The testimonial nature of the

production is what places these examples within or without

the privilege.

Under the “foregone conclusion” theory, an act of

production does not violate the privilege where the govern-

ment already knows the evidence exists and the nature of

its possession. United States v. Hubbell, id.; Doe v. United

States, id.; Andresen v. Maryland, id. Petitioner’s tattoos fit

neatly into this exception for acts of production since their

discovery was inevitable under normal police procedures.

People v. Turiago, 90 N.Y.2d 77 (1997); People v. Stith, 69

N.Y.2d 313 (1987); People v. Fitzpatrick, 32 N.Y.2d 499

(1973). And once the tattoos were revealed, their use as

evidence did not depend on testimony from petitioner. Jn re

Grand Jury Duces Tecum Dated December 14, 1984, Y.,

M.D., P.-C. v. Kuriansky, 69 N.Y.2d 232, cert. denied, 482

U.S. 928 (1987); In re Vanderbilt (Rosner-Hickey), id.

This Court originally indicated that the privilege

against compelled self-incrimination prohibited any use of

evidence contained in private papers to prove a person’s

guilt. Boyd v. United States, 116 U.S. 616 (1886). But the

apparent conceptual basis for this view, a Fifth Amend-

ment concern for privacy, is no longer viable. Fisher v.

United States, id.; Doe v. United States, id.; Barrett v.

Acevedo, 143 F.3d 449 (8th Cir. 1998). Modern interpreta-

tion of the privilege does not protect any privacy interest

in the contents of a private written statement voluntarily

created. Furthermore, even if a personal document like a

diary were protected under a minority interpretation of

the privilege, such a theory should not extend to an easily

observed tattoo. If defendant surrendered to police with a

_ letter in his pocket about how he hated Mexicans, that

would be admissible as evidence. Tattoos on non-intimate

Le NA aa

23

areas of the body can be seen and described without a

defendant’s involvement. Thus, tattoo photographs taken

after arrest or by court order can be discussed by an expert

without any defendant involvement at trial.

We must reiterate our position that the communica-

tive aspect of some tattoos does not lessen the essence of

all tattoos: physical characteristics whose observation

requires no testimonial act. Pennsylvania uv, Muniz, id.;

United States uv. Dionisio, 410 U.S. 1 (1973); Gilbert uv.

California, 388 U.S. 263 ( 1967); United States v. Wade, 388

U.S. 218 (1967); Schmerber v. California, id; United States

v. Esdaille, 769 F.2d 104 (2d Cir. 1985) (all physical char-

acteristics are non-testimonial and display may be com-

pelled with admissibility depending on reliability); Oliver

v. Middlebrooks, 402 F2d 781 (Sth Cir. 1968) (needle

tracks on arm were available as evidence because body

itself is outside protection of Fifth Amendment); Jn re

Layden, 446 F.Supp. 53 (N.D. Il. 1978) (attempt to get

defendant to feign handwriting exemplars was more than

physical characteristic and violated privilege); People v.

Scarola, 71 N.Y2d 769 (1988) (tattoos are non-

testimonial); People v. Suarez, 298 A.D.2d 218 (1st Dept.),

lu. denied, 99 N.Y.2d 565 (2002) (photographs of non-injury

and tattoo showed physical characteristics which could be

seen by jury at trial anyway); People v. Peters, id. (photo-

graph of Rasta hair was- non-testimonial); People uv.

Boudreau, 115 A.D.2d 652 (2d Dept. 1985) (physical

coordination tests for sobriety outside protection of privi-

lege); People v. Smith, 86 A.D.2d 251 (3d Dept. 1982) (voice

exemplar was physical characteristic and thus privilege

inapplicable); People v. Rosario, 136 Misc.2d 445 (Crim. Ct.

Bronx Co. 1987) (unlike physical act such as nod or shake of

head, breathing into breathalyzer is non-testimonial),

Petitioner also maintains that court ordered discovery

of his tattoos under New York State Criminal Procedure

Law §240.40(2)(b) was unavailable because the tattoos

were testimonial. However, this begs the question. Since

the tattoos were non-testimonial, the statute permitted

their discovery. The language “may order the defendant to

provide non-testimonial evidence” does not create any

_ —_—_ OL

24

separate statutory restriction upon non-testimonial

evidence beyond the limits imposed by the state and

federal constitutions. People v. Colavito, 87 N.Y.2d 423

(1996); People v. Copicotto, id.; People v. Alpern, 217

A.D.2d 853 (2d Dept. 1985). Non-testimonial evidence,

even of a prior communicative nature, is not exempted

from New York State statutory discovery.

Although the tattoos were incriminating evidence for

motive for petitioner’s hate crime, he never gave any

testimony about them whatsoever. Physical characteris-

tics, which also happen to be prior voluntary communica-

tive statements, reflect prior thoughts and actions without

any extortion of contemporaneous thoughts. Couch v.

United States, 409 U.S. 322 (1973) (privilege does not

extend to records possessed by defendant’s accountant);

Curcio v. United States, 354 U.S. 118 (1997) (corporate

officer must produce records but retains privilege as to

oral testimony); People v. Berg, id.; People v. Hager, id.

Petitioner related no factual assertion nor did he disclose

any non-preexisting information. Pennsylvania v. Muniz,

id.; Doe v. United States, id. The Fifth Amendment privi-

lege remained untransgressed.

II. The decision of the New York State Court of

Appeals is also in harmony with federal consti-

tutional interpretation of the First, Fourth,

Sixth, and Fourteenth Amendments.

Petitioner’s other constitutional arguments also lack

merit. The right to free speech guarantees the right to

express disagreeable and offensive ideas like racial inferior-

ity. U.S. CONST. amend. I. But there is no First Amendment

right to exclude nonverbal statements, like membership in

an organization or a body tattoo, from being evidence in a

criminal case. R.A.V. v. City of St. Paul, Minnesota, 505 U.S.

377 (1992); Dawson v. Delaware, 503 U.S. 159 (1992); Wis-

consin v. Mitchell, 508 U.S. 476 (1993). Indeed, courts are not

in agreement that all possibly expressive conduct deserves

First Amendment protection. Texas v. Johnson, 491 U.S. 397

(1989) (flag burning is protected); Bery v. City of New York,

OO |

25

97 F.3d 689 (2d Cir. 1996) (public art display is protected);

Yarkew v. Sinclair, 495 F.Supp. 1248 (D. Minn. 1980) (tattoo

is not protected communication); State v. White, 348 S.C. 532,

960 S.E.2d 420 (2002) (tattoo is not protected speech); State

v. Medical Lic. Bd. v. Brady, 492 N.E.2d 34 (Ct. App. Ind.

First Dist. 1986) (artistic tattooing not protected).

Once the tattoo has been created and any possible

statement intended thereby has been expressed, however,

subsequent desire to keep a tattoo concealed has nothing

to do with the First Amendment. Depending on the loca-

tion of the tattoo, the source of such a constitutional claim

would have to be the right to privacy. The First Amend-

ment is no barrier to the admission of evidence on one’s

beliefs or associations. Dawson v. Delaware, id.; Barclay v.

Florida, 463 U.S. 939 (1983). Speech protected by the First

Amendment can be used to establish the elements of a

crime or to prove motive or intent. Wisconsin v. Mitchell,

id. Once a tattoo is created, like any other prior statement,

it can become evidence in a criminal case.

There was also no violation of the constitutional right to

be free from unreasonable search and seizure. U.S. CONST

amend. IV. The touchstone for analysis of this claim is

whether society will recognize a legitimate expectation of

privacy in the place or object searched. Katz v. United States,

id. This test has two components: (1) whether a person has

manifested some subjective expectation of privacy and (2)

whether society should honor that expectation as reasonable.

Prior to a lawful arrest, a search or seizure can be considered

reasonable if done pursuant to a judicial warrant or if police

conduct otherwise falls within some exception to the warrant

requirement. Once petitioner surrendered, he conceded police

had probable cause to believe he committed a crime. Contem-

poraneous to this lawful custody, petitioner had a reduced

expectation of privacy both subjectively and objectively.

During the arrest process, when petitioner’s tattoos were

initially photographed, he may have expressed some lack of

consent but whether there truly existed a subjective expecta-

tion for him to keep his shirt on is debatable. What should

not be entertained, however, is petitioner’s argument that

26

photographing outward physical characteristics of appel-

lant’s body was an objectively unreasonable search for or

seizure of evidence. The creation of arrest photographs is

required by New York State statute without being limited to

so-called mug shots. See New York State Criminal Procedure

Law §§160.01(3) (refers to “the photograph”) and 160.50(1)(a)

(refers to “every photograph”); People v. Patterson, 78 N.Y.2d

711 (1991) (return of arrest photos is not constitutionally

required); People v. Torres, 291 A.D.2d 273 (1st Dept.), lv.

denied, 98 N.Y.2d 681 (2002) (photo used to establish ap-

pearance, not identification); People v. Walls, 277 A.D.2d 959

(4th Dept. 2000), lv. denied, 96 N.Y.2d 808 (2001) (tattoo

photos admitted); People v. DiBella, id. (despite tattoo, photo

admitted to establish post-fight physical condition); People v.

Williams, 170 A.D.2d 552 (2d Dept.), lv. denied, 77 N.Y.2d

1002 (1991); People v. Peters, id. (post-sale photo admissible);

People v. Gallina, 110 A.D.2d 847 (2d Dept. 1985) (photo

properly used for investigative purpose); People v. Bagley,

183 Misc.2d 523 (Sup. Ct. N.Y. Co. 1999); People v. Lord, 104

Misc.2d 150 (Crim. Ct. Kings Co. 1980) (statute not designed

to thwart creative investigation); People v. Howard, 90

Misc.2d 662 (Sup. Ct. N.Y. Co. 1977) (photos may be used to

further investigation); People v. Johnson, 88 Misc.2d 749 (Co.

Ct. Onondaga Co. 1976) (arrest photos should be done at

time of arrest); People v. Killian, 74 Misc.2d 120 (Co. Ct.

Nassau Co. 1973) (lawful duty to photograph). Neither

appellant nor counsel can limit the investigative use of an

arrest photograph to identification purposes only.

Once a defendant is in lawful custody, he may be

forced to exhibit his appearance for more than just a

photograph. Cupp v. Murphy, 412 U.S. 291 (1973) (finger-

nail scraping during voluntary questioning); United States

v. Dionisio, id. (voice exemplars); United States v. Wade,

id. (lineup with voice exemplars); People v. Whitaker, 64

N.Y.2d 347, cert. denied, 474 U.S. 830 (1985) (filler for

unrelated lineup); People v. Randt, 142 A.D.2d 611 (2d

Dept. 1988) (pubic combing); People v. London, 124 A.D.2d

254 (3d Dept.), lv. denied, 68 N.Y.2d 1001 (1986) (lineup on

probable cause without filed charges); People v. Smith, id.

(voice exemplar); People v. Rumph, 128 Misc.2d 438 (Sup.

i i ee Eee ay

27

Ct. Kings Co. 1985) (discolored knee display); People v.

Mineo, 85 Misc.2d 919 (Sup. Ct. Queens Co. 1976) (palm

prints); People v. Allah, 84 Misc.2d 500 (Sup. Ct. Bronx Co.

1975) (dental impressions); People v. Sallow, 100 Misc. 447

(Ct. Gen. Sess. N.Y. Co. 1917) (fingerprints).

Of course, surrendering into custody is not an aban-

donment of all Fourth Amendment rights. The limits of

acceptable police conduct are clear. There can be no

physical intrusion beneath the skin without judicial

- approval and no invasion of personal dignity. Winston v.

Lee, 470 U.S. 759 (1985) (surgical removal of bullet);

Schmerber v. California, id. (blood withdrawn); Rochin v.

California, 342 U.S. 165 (1952) (stomach pumped); Lauro

v. Charles, 219 F.3d 202 (2d Cir. 2000) (no more “perp

walks”); People v,. Ramirez-Portoreal, 88 N.Y.2d 99 (1996)

(surrender of control does not equal waiver of all privacy);

People v. Natal, 75 N.Y.2d 379 (1990) (property given up at

jail can go to DA without warrant): People v. Cwikla, 46

N.Y.2d 434 (1979) (wig worn during lineup did not infringe

upon right to determine appearance); People v. Evans, 42

N.Y.2d 160 (1977) (arrest must precede full body search).

The intrusion into personal privacy that is a full

custodial arrest had already taken place. Additional lesser

intrusions were not objectionable. People v. Whitaker, id.;

People v. Perel, 34 N.Y.2d 462 (1974); People v. Chiagles,

237 N.Y. 193 (1923). The permissible scope of intrusion

depends on the crime charged, individual characteristics of

the person in custody, and point in the investigation that

detention occurred. Even if evidence is later held inadmis-

sible due to privilege, that does not render the initial

seizure unlawful. People v. Perel, id.

Besides being independently reasonable, there is also

the exception to the warrant requirement known as search

incident to arrest. While the tattoos did not pose any safety

threat, there remained a possibility of destruction, con-

cealment, or alteration. United States v. Robinson, 414 U.S.

218 (1973); People v. Tejada, 93 N.Y.2d 963 (1999) (post-

arrest wallet search); People v. Grokey, 60 N.Y.2d 309

28

(1983); People v. Smith, 59 N.Y.2d 454 (1983); People uv.

DeSantis, 46 N.Y.2d 838 (1978), cert. denied, 443 U.S. 912

(1979); People v. Belton, 55 N.Y.2d 49 (1982); People v.

Spruill, id.; People v. Archibald, 269 A.D.2d 682 (2d Dept.),

lu. denied, 92 N.Y.2d 880 (2000); People v. Randt, id., People

v. Levan, 91 A.D.2d 384 (1st Dept. 1983). Thus, photogra-

phy enabled the police to preserve the tattoos as they

existed only-six weeks after the crime. Indeed, at least one

defendant has argued that a photograph of a tattoo is less

prejudicial than a live display. People v. Herr, 203 A.D.2d

927 (4th Dept. 1994), aff'd, 86 N.Y.2d 638 (1995). Surely the

decision to keep that choice available was reasonable. The

completeness of the search incident io arrest needs no

additional justification. People v. Weintraub, 35 N.Y.2d 351

(1974); Horton v. California, 496 U.S. 128 (1990); New York

v. Belton, 453 U.S. 454 (1981); Chimel v. California, 395

U.S. 752 (1969); People v. Marsh, 20 N.Y.2d 98 (1967);

People v. Taylor, 294 A.D.2d 825 (4th Dept. 2002); People v.

Barclay, 201 A.D.2d 952 (4th Dept. 1994).

The presumption that petitioner knew how the photo-

graphs of his tattoos would be used is not a factor in

analyzing whether the procedure was reasonable. In fact,

their actual ultimate use is also not a factor in assessing

the reasonableness of the process used to take them.

Although defense counsel puts large stock in his written

directives that his client would make no statements, the

photographic procedure was not his to control. There are

no partial surrenders. Physical dominion over petitioner

could not be limited by defense counsel. Basic human

dignity does not prevent the removal of a shirt. Once the

neck tattoo was observed in plain view, the police were

entitled to look for other tattoos. The ability to photograph

the tattoos was coextensive with the ability to testify

about them. Observing and recording tattoos through

photography is hardly a remarkable procedure, much less

a reprehensible one. Petitioner’s objection to the creation

of the tattoo photographs cannot withstand any scrutiny.

Once the tattoo photographs were taken, their subse-

quent use had absolutely no Fourth Amendment implica-

tions. People v. King, 232 A.D.2d 111 (2d Dept. 1997) (DNA

29

sample reused for different rape). Defense counsel made

repeated attempts to suppress or exclude the tattoo

photographs, which permitted comprehensive judicial

review. This opportunity to challenge the photographs

fully protected petitioner’s rights, even the supposed right

to limit the procedure to mug shots. Even involuntary

statements remain discoverable prior to determining

admissibility. People v. Huntley, 15 N.Y.2d 72 (1965).

There was no legitimate expectation of privacy to prevent

post-arrest photography of appellant’s tattoos and the

subsequent court order to that effect removed any taint

that the arrest procedure could have had on the evidence

used at trial.

Nor was there any denial of the right to counsel when

the arrest photographs were taken over defense counsel’s

objection. U.S. CONST. amend. IV. While arrest is a

critical stage if counsel is already in place, routine arrest

processing is not. Defense counsel did tell police his client

would be making no statements, but this directive was

honored. Taking pictures of tattocs is not taking a state-

ment. The non-verbal act of sing posed for a photograph

is only a statement when it is accompanied by an existing

thought intended to be expressed to and understood by

another. When the intent to make a statement is specifi-

cally disavowed, there is no statement. Preservation of

statements previously created cannot and should not be

stopped by defense counsel.

Petitioner argues that his right to due process and a

fair trial was violated by the use of his prejudicial tattoos.

U.S. CONST. amend. V and amend. XIV. We would merely

reiterate that the relevance of these prejudicial tattoos to

motive was argued ad nauseum at every level of peti-

tioner’s prosecution. Indeed, our brief in the New York

State Court of Appeals surveyed numerous jurisdictions to

explain how they treat evidence of tattoos as motive.°

* See People v. Skinner, 53 P.2d 720 (Colo. Ct. App., Div. V 2002);

King v. State, 29 S.W.3d 556 (Tex. Crim. App. 2000); State v. Novak, 949

S.W.2d 168 (Mo. App. 1997); Commonwealth v. Romero, 1997 WL

(Continued on following page)

30

Finally, we must point out that there was no reason-

able possibility of acquittal even if there was a violation of

the Fifth Amendment. Arizona v. Fulminante, 499 U:S.

279 (1991). In the dissent below, both Judge Kaye and

Judge Ciparick held that admission of the tattoo evidence

was error under their interpretation of the privilege

against self-incrimination. However, they both agreed that

the error was harmless beyond a reasonable doubt due to

the overwhelming evidence of guilt. This factor alone

should obviate the alleged need for review in the United

States Supreme Court.

CONCLUSION

For these reasons, the Petition for a Writ of Certiorari

should be denied.

Respectfully submitted,

STEVEN A. HOVANI

Counsel for Respondent

Suffolk County District

Attorney's Office

Criminal Courts Building

200 Center Drive

Riverhead, New York 11901

631-852-2463

MICHAEL BLAKEY

Assistant District Attorney

On the Brief

1070445, 43 Va. Cir. 530 (Cir. Ct. Va. Fairfax Co. 1997); State v. Phelps,

197 W.Va. 713, 478 S.E.2d 563 (Sup. Ct. App. W. Va. 1996); People v.

Aishman, 19 Cal. Rptr.2d 444 (Col. App. 4 Dist. 1993); State v. Macias,

481 So.2d 979 (Dist. Ct. App., 4 Dist. 1986), aff'd, 515 So.2d 206 (Sup.

Ct. Fla. 1987); State v. Lee, 51 N.C. App. 344, 276 S.E.2d 501 (N.C. Ct.

App. 1981); State v. Bowden, 113 R.I. 649, 324 A.2d 631 (Sup. Ct. R.I.

1974); People v. Witherspoon, 26 I11.2d 483, 190 N.E.2d 281 (Sup. Ct. Ill.

1963).