IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent v. THOMAS MICHAEL KELLY, Defendant-Appellant Clatsop County Circuit Court No. 061238 Court of Appeals # A139810 APPELLANT'S RESPONSE AND OJECTION TO RESPONDENT'S PETITION FOR RECONSIDERATION Appeal from the Judgment of Conviction and Sentencing, by Cindee Matyas, Circuit Court Judge of Clatsop County, Oregon, Entered July 26, 2008 Raymond S. Tindell, OSB 87089 Attorney at Law 1122NE 122ndAveSteB211 Portland, OR 97230 (503)257-9268, email: raypdxlaw@gmail.com Attorney for defendant-appellant Mary Williams, OSB 911241, Solicitor General Karla H Ferrall, OSB 992074, Assistant Atty General 1162 Court Street NE Salem, OR 97301 (503)378-4402, email: karla.h.ferrall@doj.state.or.us Attorney for Plaintiff-Respondent 1. IN THE COURT OF APPEALS OF THE STATE OF OREGON 2. STATE OF OREGON, 4 Plaintiff-Respondent, 5. v. 6THOMAS MICHAEL KELLY, 8 Defendant-Appellant9. ) Clatsop County Circuit ) Court No. 061238 ) ) Appellate Court No. A139810 ) ) ) APPELLANT'S RESPONSE ) AND OBJECTION TO ) RESPONDENT'S PETITION FOR ) RECONSIDERATION Comes now Appellant, Thomas Michael Kelly, by and through his ,, attorney, Raymond Tindell, and submits this Response and Objection to 12. Respondent's Petition for Reconsideration. 13- FACTS AS FOUND IN THE COURT'S OPINION: Defendant 14 accepts the statement of facts by this Court, in the opinion herein, State v 15. Kelly, 244 Or App 105 (2011), that have not been disputed: The alleged 16. victim C, was asked by her father's girlfriend Reeves, whether "anybody was doing anything to her" that Reaves should know about and that C Jo. 19 denied each time anything inappropriate was being done to her. An Officer 20. arrived at the family residence and interviewed C. Reaves was present for an participated in the interview. In defendant's case was offered the 22. 1- APPELANT'S RESPONSE/OBJECTION TO RECONSIDERATION Page Raymond Tindell, Attorney at Law, 1122 NE 122nd Ave Ste B211 Portland, OR 97230 (503)257-9268, fax (503)256-6470 1. testimony of some of C's former teachers, psychiatrists who had evaluated 2. her, and an expert psychologist. Defendant's case was, in large part, focused 4 on C's tumultuous psychosocial history, the possibility that her memory had 5. been corrupted by suggestive questioning, and her past difficulties with 6- telling the truth. The State's evidence also included "scientific evidence" including 8. DNA testing and analysis. Forensic Scientist Dale Purcell testified at the 9. trial that the samples collected at the residence of defendant show that a 10. j, minimal sample of sperm or semen stain belonging to defendant existed on 12. a chair cushion and only 1 spermatozoa head was detected. The Forensic 13- Scientist Dale Purcell testified that there is "no test available that will age a 14 stain" and Mr. Purcell testified it is possible the stain could have been as old 15. as 25 years of age, far beyond the allegations in this case. Tr., P 307, L 7 16. 17. 17. jo In addition, the State presented testimony of Dr. Little, that a medical 79 examination was conducted and revealed no physical evidence of abuse, and 20. made a finding of sexual abuse based upon the interview with C and the 21. 22. 2- APPELANT'S RESPONSE/OBJECTION TO RECONSIDERATION Page Raymond Tindell, Attorney at Law, 1122 NE 122nd Ave Ste B211 Portland, OR 97230 (503)257-9268, fax (503)256-6470 1. history that had been provided. Credibility of the alleged victim C was at 2. all times the contested issue in this case at trial and in pre-trial Motions. 4 LEGAL ARGUMENT IN OPPOSITION TO RECONSIDERATION: 5. This case should not be re-considered, as the Court of Appeals issued it's 6- written opinion, carefully discussing the facts in the case and the issues presented to the Court. State v Kelly, 244 Or App 105 (2011). This Court 8. correctly relied upon the rulings that preceded this case, including State v 9. Southard, 347 Or 127 (2009) where clearly the Court held that an expert's ,, diagnosis of sexual abuse made in the absence of physical evidence is 12. inadmissible under OEC 403, and State v Lupoll 348 Or 346 (2010), where ^- the court concluded that the trial court's admission of such diagnosis was 14 error, that had been preserved by Respondent, and that respondent had made 75. the argument in pre-trial Motion that Dr. Little's diagnosis constituted 16. impermissible vouching for the credibility of another witness. , „ The State argued to this Court of Appeals that defendant had not 19 preserved error, however, the court correctly found in its written opinion 20. that defendant had filed a motion to limit or exclude the expert testimony of 21. 22. 3- APPELANT'S RESPONSE/OBJECTION TO RECONSIDERATION Page Raymond Tindell, Attorney at Law, 1122 NE 122nd Ave Ste B211 Portland, OR 97230 (503)257-9268, fax (503)256-6470 1. Dr. Little, citing "OEC 104, OEC 401, OEC 403, [and] OEC 702." Prior to 2. trial, Defendant argued and preserved the error that the "[tjestimony concerning a 'diagnosis' of child sexual abuse" should be excluded. 5. Defendant did argue and preserve error that the expert testimony did not ^- meet the foundational requirements for scientific evidence as articulated in State v. O'Kev, 321 Or 285, 290, 899 P2d 663 (1995), and State v. Brown, 8. 297 Or 404, 438, 687 P2d 751 (1984), and that the testimony, moreover, 9. would constitute "an impermissible comment on the credibility of another 10. ,, witness." In Defendant's Appellant Brief, he argues, even preceding the line 12. of cases of Southard, Lupoli that it was error to 13. "allow Dr. Little to testify as to a "diagnosis" of sex abuse, since based upon the facts and circumstances herein such a "diagnosis" is merely an impermissible and inadmissible comment upon the yj credibility of another witness. Because of violation of these principles, defendant was denied fundamental fairness, due process, 16. and rights to a fair trial pursuant to Oregon Constitution, Article 1, Sections 9, 10, 11, 13, 20, US Constitution, Amendments 5, 6, 14." 17- Appellant's Brief, P 19-20. 70 As this court correctly concluded, the error committed by the trial 19. court was not harmless error, even though correctly held to have been 20. preserved by defendant, because the admission of an expert's diagnosis of 22. 4- APPELANT'S RESPONSE/OBJECTION TO RECONSIDERATION Page Raymond Tindell, Attorney at Law, 1122 NE 122nd Ave Ste B211 Portland, OR 97230 (503)257-9268, fax (503)256-6470 1. sexual abuse in the absence of physical evidence constitutes plain error, 2. pursuant to State v Lovern, 234 Or App 502 (2010) and State v Merrimon, 4 234 Or App 525 (2010). It does not get any more fundamental than having 5. rights to a fair trial disrupted by the essential premises that a Doctor, or any 6- witness, cannot vouch for the credibility of another witness. Here, as the Court correctly states, that State's case was built around the believability of 8. C's allegations, and no other direct evidence was introduced that the abuse 9. had occurred. Defendant's theory of his case was that C fabricated the 10. U allegations in response to suggestive questioning and that, in light of her 12. psychological and behavioral history, her testimony could not believed, !3- hinging on the credibility of C. 14 With regards to the cases, the State was directly involved with, 75. including filing the briefs, arguing the cases before this Court of Appeals, 16. and received the rulings of Southard, Lupoli, Lovern, and Merrimon, all , „ cited Supra, prior to this case going to Oral Argument. The state herein 79. cited these cases in this case prior to the Oral Argument herein. Also cited 20. 21. 22. 5- APPELANT'S RESPONSE/OBJECTION TO RECONSIDERATION Page Raymond Tindell, Attorney at Law, 1122 NE 122nd Ave Ste B211 Portland, OR 97230 (503)257-9268, fax (503)256-6470 1. at the Oral Argument for the Court's consideration was State v Arriaza, 236 2. Or App 456 (2010), where it was held to be plain error on the face of the , record for the trial court's admission of a diagnosis regarding sexual abuse 5. based soley upon the child's reporting and no medical findings. 6- Under all these facts and circumstances, and consistent with at this time numerous cases which essentially say the same thing, that medical 8. diagnosis of sex abuse is "vouching for" the credibility of the alleged victim 9. herein, thus denying defendant fundamental fairness, due process, and rights ,, to a fair trial pursuant to Oregon Constitution, Article 1, Sections 9, 10, 11, 12. 13, 20, US Constitution, Amendments 5, 6, 14. The Opinion of this Court 13- of Appeals is correct and the State's Motion for Reconsideration should be 14. denied. 75. Dated this^-y day of August, 2011. 16. 17. Raymond Tindell, OSB 87089 Attorney for Defendant-Appellant 19. 20. 21. 22. 6- APPELANT'S RESPONSE/OBJECTION TO RECONSIDERATION Page Raymond Tindell, Attorney at Law, 1122 NE 122nd Ave Ste B211 Portland, OR 97230 (503)257-9268, fax (503)256-6470 1. NOTICE OF FILING , PROOF OF SERVICE and CERTIFICATE OF SERVICE 3. I certify that I directed the original Appellant's Response and Objection to 4. Respondent's Petition for Reconsideration, to be filed with the Appellate Court Administrator, Appellate Courts Records Section, 1163 State Street, 5-Salem, Oregon 97301, on August 24, 2011. I further certify that, upon receipt of the confirmation email stating that the document has been accepted by the eFiling system, this Appellant's Response and Objection to Respondent's Petition for Reconsideration will 8. be eServed pursuant to ORAP 16.45 (regarding electronic service on registered eFilers) on Karla Ferrall, OSB 992074, Assistant Attorney General, attorney for Defendant-Respondents. 10. Respectfully submitted, DATED this ssi 2vdvday of y ,2011 12. ~ Raymond Tindell, OSB 87089 Attorney for Defendant-Appellant 11 22 ME 1 22nd Ave, Ste B2 1 1 15. Portland, OR 97230 (503)257-9268 16. 17. 18. 19. 20. 21. 22. Page Raymond Tindell, Attorney at Law, 1 122 NE 122nd Ave Ste B211 Portland, OR 97230 (503)257-9268, fax (503)256-6470