In the Appellants Supplemental Objection To Respondents (States) Petition For Reconsideration, The Defense has caught the state misrepresenting the facts to the Appellant Court. This in itself could have swayed the Appellant Court's ruling against Mr. Kelly. There for we believe this was an intentional act and a further injustice to Mr. Kelly and an attempt to interfere with his due process rights and can be construed as an obstruction of justice by the State. These documents of the Appellants Supplemental Objection to Respondents Petition for reconsideration and the evidence are in this file. Also note: the evidence documents date which the Justice Department sent to the Appellant Court and the Defense was dated Jan. 25 2010. The States misrepresentation of the facts to the Appellant Court was in Aug. 2011 which was a smoke screen, claiming that the defense had no claim. The State lied when it said, they had no knowledge or prior knowledge to the key issues in this case to the Appellant Court. 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 SUPPLEMENTAL OBJECTION 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 STATE OF OREGON, 3Plaintiff-Respondent, 4. v. 5THOMAS MICHAEL KELLY, Defendant-Appellant. ) Clatsop County Circuit ) Court No. 061238 ) ) Appellate Court No. Al39810 ) ) ) APPELLANT'S SUPPLEMENTAL ) OBJECTION TO ) RESPONDENT'S PETITION FOR ) RECONSIDERATION ) Comes now Thomas Kelly, Defendant Appellant, by and through his attorney, Raymond 10. Tindell, and submits this Supplemental Objection to Respondent's Petition for Reconsideration 11- for 1 issue, namely, that the State argues it had not sufficient notice of the applicability of State 12. v Southard, 347 OR 127 (2009) and the cases that followed, even though this case was decided 13- after Kelly's Appellant Brief was filed. Attached herein and incorporated hereto as "Appellant's 14. Motion Exhibit A" is a letter to the Oregon Supreme Court, dated January 25, 2010 signed 15- jointly by Anna Joyce, AAG of the Dept of Justice, and Anne Munsey, Office of Public 16. Defense Services, which cc: includes Raymond Tindell, attorney for Defendant herein, wherein 17- it is stated that the court had recently issued a decision in State v Southard, and was scheduled 18- to hear argument in State v Lovern, Al 37247, and State v Merrimon, A139106. and the letter 19. alerts the Court that more cases were scheduled for the same questions regarding receipt of 20. evidence of a diagnosis of child sex abuse made in the absence of any physical evidence, and 21- includes the case of State v. Kelly, and indicates that Respondent's Brief in Kelly was still due. 22. 1- APPELLANT SUPPLEMENTAL OBJECTION TO PETITION FOR RECONSIDERATION Page Raymond Tindell, Attorney at Law, 1122 NE 122nd Ave Ste B211 Portland, OR 97230 (503)257-9268, fax (503)256-6470 1. Defendant herein understands that this is not part of the Record below but is offered to 2. respond to the claims made in the State's Petition for Reconsideration. Clearly the State was 3. not only aware of the issues prior to filing the brief, but alerted the Oregon Supreme Court that 4. the Kelly case is pending with the same issues. Defendant herein submits this letter for 5. whatever consideration in its discretion this Court deems this to have merit, and in response to 6. the issues raised by the State in their Petition for Reconsideration. In support, Defendant 7. attaches hereto Appellant Exhibit "A" and the attached Declaration of Raymond Tindell in 8. support of Supplemental Objection to Respondent's Petition for Reconsideration. 9. Dated this 25 day of August, 2011. 10. 11. Raymond Tindel, OSB 87089 12. Attorney for Defendant-Appellant 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 2- APPELLANT SUPPLEMENTAL OBJECTION TO PETITION FOR RECONSIDERATION Page Raymond Tindell, Attorney at Law, 1122 NE 122nd Ave Ste B211 Portland, OR 97230 (503)257-9268, fax (503)256-6470 1. IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, 3Plaintiff-Respondent, 4. v. 5THOMAS MICHAEL KELLY, Defendant-Appellant8. ) Clatsop County Circuit ) Court No. 061238 ) ) Appellate Court No. A139810 ) ) ) DECLARATION OF RAYMOND ) TINDELL IN SUPPORT OF ) SUPPLEMENTAL OBJECTION ) ) I, Raymond Tindell, state the following: 10. I am the attorney for Defendant-Appellant. I have reviewed the Petition for 11. Reconsideration submitted by the State, making a claim that they did not have 12. notice of the State v Southard, 347 OR 127 (2009) case and it's applicability to the Kelly case herein with regards to receipt of evidence by an expert witness of 15. medical diagnosis of sex abuse in the absence of medical findings prior to filing their Responding Brief (red brief) Attached herein and incorporated herein as 17. "Appellant's Motion Exhibit A" is a letter to the Oregon Supreme Court, dated 18. January 25, 2010 signed jointly by Anna Joyce, AAG of the Dept of Justice, and 19. Anne Munsey, Office of Public Defense Services, which cc: included me. I state 2i that I did receive this letter in Exhibit A herein in the ordinary course of business 22. 1- APPELLANT SUPPLEMENTAL OBJECTION TO PETITION FOR RECONSIDERATION Page Raymond Tindell, Attorney at Law, 1122 NE 122nd Ave Ste B211 Portland, OR 97230 (503)257-9268, fax (503)256-6470 1- and as custodian of records and attorney for Defendant Kelly herein. I offer this exhibit understanding this is not part of the trial court record, but for whatever consideration this Court deems this to be worth soley on the issue of the State's 4. knowledge of the applicability of the Southard Case and its progeny prior to their 5. filing of the Respondent's Answering Brief (red brief). I hereby declare that the above statement is true to the best of my knowledge and belief, and that I understand it is made for use as evidence in 8. court and is subject to penalty for perjury. Dated this ^> day of August, 2011. 10. 11. Raymond Tindell, OSB 87089 Attorney for Defendant-Appellant 12- 1122 NE 122nd Ave, Ste B211 Portland, OR 97230 (503)257-9268 14. 15. 16. 17. 18. 19. 20. 21. 22. 2- APPELLANT SUPPLEMENTAL OBJECTION TO PETITION FOR RECONSIDERATION Page Raymond Tindell, Attorney at Law, 1122 NE 122nd Ave Ste B211 Portland, OR 97230 (503)257-9268, fax (503)256-6470 JOHN R. KROGER MARY H' WILLIAMS Attorney General D-V^^^-J* DePut> Attorney General DEPARTMENT OF JUSTICE APPELLATE DIVISION January 25, 2010 Oregon Supreme Court 1163 State Street NE Salem, OR 97301 To Presiding Judge Haselton, Judge Armstrong, and Judge Rosenblum: This court is scheduled to hear argument in State v. Lovern, A137247 and State v. Merrimon, A139106, on January 28, 2010. Both cases raise challenges to the admission of a diagnosis of child sexual abuse made in the absence of any physical evidence. Both cases also raise questions about whether the legal challenges were preserved below. The state and Office of Public Defense Services would like to alert this court to several other cases in which the same issue—arguably unpreserved challenge to a diagnosis of child sexual abuse—is presented: • State v. Robledo, A136954 (respondent's brief filed 12/24/2009) • State v, Rogers, A139212 (response to petition for reconsideration filed 1/11/10) • State v. Cordova-Contreras, A139645(respondent's brief due 1/27/2010) • State v. Gonzales, A136016 (respondent's supplemental brief due 1/25/2010) • State v. Kelly, A139810* (respondent's brief due 1/26/2010) • State v. Bella, A136035* (response to petition for reconsideration due 2/17/2010) • State v. Almanza-Garcia, A140520 (respondent's brief due 2/24/2010) • State v. Davila, A139939 (respondent's brief due 2/9/2010) • State v. Bainbridge, A139959 (respondent's brief due 3/31/2010) • State v. Gram, A138031 (respondent's brief due 5/13/2010) • State v. Richardson, A139925 (respondent's brief due 5/14/2010) • State v. Potts, A140730 (respondent's brief due 5/20/2010) • State v. Bahmatov, 140266 (respondent's brief due 4/12/2010) • State v. Thomas, A141439 (respondent's brief due 6/14/2010) Additionally, the Oregon Supreme Court recently issued a decision on that issue in State v. Southard, S055463. The briefing in State v. Lovern was completed before the court issued its opinion in Southard, and the briefing in Merrimon was completed shortly after Southard came down. While the briefing in both cases addressed preservation issues, the state and Office of 1162 Court Street NE, Salem, OR 97301-4096 Telephone: (503) 378-4402 Fax: (503) 378-3997 TTY: (800) 735-2900 www.doj.state.or.us January 25, 2010 Page 2 Public Defense Services has since further addressed the propriety of this court reaching an arguably unpreserved claim that a diagnosis was wrongly admitted in the cases listed above. Sincerely, - Anna M. Joyce Oregon Department of Justice Anne Munsey Office of Public Defense Services * Defendant is not represented by the Office of Public Defense Services. In State v. Bella, Jason Thompson represents defendant. In State v. Kelly, Raymond Tindell represents defendant. Cc: Jason Thompson Raymond Tindell NOTICE OF FILING , PROOF OF SERVICE and CERTIFICATE OF SERVICE I certify that I directed the original Appellant's Supplemental Objection to Respondent's Petition for Reconsideration, to be filed with the Appellate Court Administrator, Appellate Courts Records Section, 1163 State Street, Salem, Oregon 97301, on August 25, 2011. I further certiiy that, upon receipt of the confirmation email stating that the document has been accepted by the eFiling system, this Appellant's Supplemental Objection to Respondent's Petition for Reconsideration will 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. Respectfully submitted, DATED this XX day of Ma? ,2011 Raymond Tindell, OSB 87089 Attorney for Defendant-Appellant 1122 NE 122nd Ave, Ste B211 Portland, OR 97230 (503)257-9268