# Opposition Brief — Slavin v. New York

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1782%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2004
- **Citation:** 543 U.S. 818

## Text

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).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1782%3A2. Public record. Not legal advice.