Issues Raised on Appeal

First, a little prelude before presenting these issues and grounds presented on Appeal.  Can a poor man/ indigent Pro Se inmate really get justice?         -Not yet-    also see Ignored Case Law

I think that I’m fairly intelligent and fairly articulate, but it just baffles me.  How with this much new and old evidence of ineffective assistance of counsel, police perjury, obstruction of justice and the possibility/probability of a miscarriage of justice, that I could never get any action/justice or a retrial/fair trial[1].  (Granted a police officer did get shot during the execution of a no-knock, forced entry, search warrant, but…please…How with all of this evidence, that I could not get any action/ Justice?)   -Some of this may be a little complicated/complex and/or may best be viewed with an attorney at least in regards to some of the more complex legal issues or questions.[2]    


Ground One:  All my new [and old] evidence with ‘new witness affidavits’ (along other supporting cases and affidavits) of my actual innocence, and proof of police perjury on the crux of their case the [only] thing that makes me guilty of this crime their [alleged] “officer notification”. [3]  (See Exhibits 1, 2, 3, 4 & 6 (further supported by their consciousness of guilt Police Report Exhibit7, and that conspiracy pattern; this changing story as a group in each retelling/accounting inconsistencies as a group Exhibit 5 pages 11-12.)  (Requires a new/fair trial)


Ground Two:  The police Lied and intentionally gave False/ Perjured testimony in an effort to obstruct justice and thus denying me a fair trial and my right to Due Process.  


Sgt. Alexander and Rigby lied to the jury (see Exhibit 5a, page 7) as to the whys and how they always do these type-of police actions. –In an effort to setup the even bigger lie that there was a “officer identification/notification” that night.

K. Stevens, lied (Perjuring form his earlier police report statements (made in Exhibit 4 A-42 and Exhibit 7 A/B-5 of me being on his LEFT [by lighted kitchen], and actually the truth as shown in Photos, P-2 that I was on his left) when he came back to rebut my testimony[4], he testified, I was crouched down over in the dark right corner, and that I never moved or changed locations during the shooting.[5]   Along with his other prejudicial made up, false testimony of Bullet Debris hitting him in the face (right side/side closest to the door).  How?  When all shots were shot from, and hit on his LEFT, (behind-left, above-left, and way, way left of him) (see P-2)   

The police investigator J. Prior gave Wrong/False testimony to the jury in regards to my first two warning shots, calling them headshots at “eye level” and “at hairline”. (As shown in Photos, P-1 and P-2 this is wrong, false and probably perjured testimony, they are 2 ½ to 3 feet over his head.)

The record on the whole is going to show: 

All these officers/State’s witnesses Intentionally Lied and Conspired to Obstruct/ Miscarriage Justice in this case.[6] 


Ground Three: Prosecutorial Misconduct.

He knew that Alexander & Rigby was lying to the jury about how they always do this type of operation/execution.  He knew they were lying when they said why they always do itfor Safety reasons/ it’s Safer for the officers (and all parties) if we do give notice of authority/ “protecting ourselves” and others. “We always have.” He knew that these were lies and he had a duty to correct them.  (see Ex1, - Ex2. - Ex6)

He had to know that officer Steven’s was lying when he came back in and told the jury that I was over in the “dark” “right side”/ right corner of the room (and never moved).  He had his two earlier statements of me being on his left [and silhouetted by the kitchen entrance]. 

He had to know that there was No “officer identification”/ “announcement” that night.  Not only because of his experience as a “State’s” attorney, working in, with and around the Courts, dealing with No-Knock/No announce warrants all the time.  But also because of these cops constantly changing accounts of when this “officer identification” was supposedly given (see Exhibit 5 pages 11-12.  But, even if he claims stupidity/that he didn’t know how these operations work[7].  He still had a duty to seek out the truth, facts, and this knowledge before presenting itBuck was actve and a long running practice, White and Wilson have been long held beliefs).  (Again see these cases)


Ground Four: The State’s Suppression of [Exculpatory] Evidence (and Witnesses).

The police actively chased away numerous witnesses that night that could have helped me.   Helped prove that my actions were legal and justifiable under those circumstances and further help prove that these cops did in fact lie to the jury in that Courtroom.[8] (See all of Exhibit 3, and specifically N-2 and N-4) 

Furthermore why did the police stop investigating this incident; stop asking any/all other nearby neighbors or witnesses what they heard or saw that night?  After that first Not-a-Cop/ neutral witness said that she heard the [kicks and] shots followed by some shouting.[9] -They didn’t take any more names, statements; no vehicle tag/plate numbers, for latter follow-ups. 

Thus passively suppressing all this other nearby exculpatory evidence/ witnesses (of not hearing any shouting until after the shots). 

-This no-more-investigating/passive suppression of witnesses and evidence (this no more asking any nearby witnesses for their names or for what they may of heard or seen that night) seems to coincide with the arrival of Dent & Potter.  Then this ‘Dent & Potter Police Report’ (Exhibit 7) (that could have been used to impeach these cops trial testimony) was suppressed for the next six years.  Because it does show exactly where this whole cover-up begins.  With it’s witness tampering and their initial intentions to obstruct justice right from the start.    

To this day the State has refused to give me S.L.Co. (or S.L.C) actual policy & procedures on how they do these No-knock Forced Entries (and/or practice doing them). –Suppression of this exculpatory evidence on how they actually do them (so see Exhibits 6 & 1).

I also believe that according to (Chapter 13; 3-13-06.2; policies and procedures)[10] that there should have been an actual tape recording of that event that would/could have verified my (and all other nearby witnesses[11]) accounting of not hearing (and there not being) any “officer notification”/ identification prior to me shooting in self-defense of myself and my home that night [12] and thus proving my actual, factual innocence of this charge.[13] 


Ground Five: Witness Tampering/Obstruction of Justice (by the State).

Dent & Potter, These two high ranking detectives comes on the scene and start telling all these lower level cops that they need to have identified themselves or they weren’t going to have a case.  So this Exhibit 7 police report is completely full of “officer identifications/notifications” with everyone yelling and shouting before the first kick and continually keep yelling it through out the whole operation.  -It’s over kill - there is way, way more “announcements” here then anywhere else.[14]  This is a completely false police report none of the statements in it matches up with any sworn Court testimony or witness accounting[15].  It is the smoking gun of when and where their intentions to obstruct justice begins.  Right there that night (and with those two detectives).[16]

How or why would K. Steven’s come back in on rebuttal to make up those lies, those perjuries (on Photos, P-2) without some kind of witness tampering? (He was sequestered???)

Who told Bortolussi to change his testimony to TWO “announcements”? (And where did his “simultaneously” come from without any witness tampering?) 


Ground Six: Inadequate, Improper, Misleading and Unconstitutional Jury Instructions. 

Jury instructions 25-26, gives the appearance/ impression/ presumption that I had NO defense.  25- says in part, “A person is justified in using force against another when … force is necessary to prevent or terminate the others “Unlawful Entry” …” followed by 26- “You are instructed that the attempted entry was “Lawful” and “Lawfully Issued” …” Thus logic would dictate that I had No defense![17] -Not against a “lawful”, “lawfully issued” warrant/entry. No matter how they did it.  (And this isn’t true)

Jury instructions 36, 1 and 19’s use of “knowingly” is improper and unacceptable in this case, there needs to be an actual deliberation and a specific intent to kill.  (“Knowingly” is not a permissible alternative culpable state of mind, see ‘Huff’). 

Furthermore there are no instructions on ‘Castonquary’ and/or on actual ‘essential elements’ and/or the burdens of proof (or lack of having to prove/the burden’s not on me) or on, or under other sudden combat/hot blood/ heat of passion situations; that there needs to be a specific deliberate cold/cool blooded intent. 


Ground Seven: Ineffective Assistance of Counsel (Trial and Appellant).  (see [ignored] sited cases)

For allowing all the above, especially for: Not checking into the actual policies and procedures, actual practices and realties of these operations/ his over all lack of preparation and failure to impeach all those above lies. And not using S. Becerra’s Resgetea statement.  And allowing such inadequate, improper, and unconstitutional jury instructions.[18] 


Ground Eight: New Evidence / New Witnesses  –In support of all of the above, including my Innocence. 

That five witnesses were actively chased way/suppressed that could have proven that my actions were legal and justified/that I am innocent of this crime that I am charge with.  (See the last two Affidavits in Exhibit 3)

That [these] other witnesses/evidence[19] were passively suppressed; that also could have added credibility to the fact that I acted in self-defense, to this violent, armed assault / Unannounced/ No-knock forced entry[20]. 

-All these new witnesses (along with all the inconsistent stories, lies, perjuries, and now busted lies/ perjuries of the police officers now on record) gives serious doubt as to their credibility and that of any “officer” identification/ “announcements” that night. 

New evidence that Sgt. Alexander & Rigby Lied to the jury there on page 7 of Exhibit 5.  (See Exhibits 1 and 6, further supported by Exhibits 3 and 4)

(New) Photographic Evidence: that of police officer J. Prior and K. Steven’s very prejudicial testimony that at best was wrong/false. And specifically in Steven’s case was intentional and calculated perjury to obstruct justice.  (See Photos P-1 and P-2, with comments)


-In fact all this New (and old) evidence Exhibits 1 through 7 including P-1 and P- 2.  That consistently shows lying, perjury and conspiracy[21] by these officers/representatives of the State [acting under color of law] in order to obstruct justice to the point of criminal corruption and a miscarriage justice for their own ends.  -Which brings up my next ground.        -Again see my cited cases [ignored by the Courts] for both of these 8 and 9


Ground Nine: An Acquittal or New Trial is required

Where there is such a strong showing of prima facie evidence of a miscarriage of justice (and police misconduct, lying/ perjury) where the Prosecutor’s case is so undermined by the truth/ actual physical realities, new witnesses/new evidence and affidavits supporting a near certitude of my innocence.  -There can be no confidence in this trial or this verdict, not in light of the complete record.  (See all Exhibits 1 through 6, P-1, P-2 (further supported by their consciousness of guilt, and out-right intention to obstruct justice as shown in Exhibit 5 page 7 and Exhibit 7).


Ground Ten: I am Actually, Factually, Legally innocent of the crime charged with.

Any man should retain strong Constitutional rights in fighting a charge/crime for which he is not guilty of.  –Even more so when the State crosses over the line of mere “misconduct” into actual criminal acts in order to obtain such a conviction.  At least give me the Equal Protection of the Law in regards to the Utah Supreme Courts decision in Castonquary, 663 P.2d 1323 at 1325; requiring that those two questions be answered in the affirmative, before a man can be found guilty of this “crime”.*And Kuhlmann v Wilson, 106 S ct 2616 [petitioner] only needs a colorable showing of factual innocence. US v Reed 875 F2d 107, 113 (1989); US v Lincoln, 630 F2d 1313, 1319 (1980); US v Rothrock, 806 F2d 318, 321-22 (1986) - If there is or even could be the possibility of a miscarriage of justice/ in the interest of justice, requires a new trial…  And US v Liebo, 923 F2d 1308, 1313-14 (1991);  Larson v US, 24 F2d 82 (1928);  US v Siddiqi, 959 F2d 1167, 1173-74 (1992) -On newly discovered evidence (corroborating defendants testimony or pivotal to jury’s decision) … and also  in  ‘Larson’ - about false testimony given by a material witness …  New trial

Ground Eleven:  Their No-knock Forced Entry into my home was unconstitutional under the Fourth Amendment.  This entry was “unreasonable” in my case (and 99% of the time). See Exhibit 6g  and Exhibit 6h 

I also argued ‘Cumulative Error’. (Although I contend that all the errors and complaints brought up in my brief were all harmful, prejudicial and violated my due process and right to a fair trial, and warranted a reversal/ New Trial, individually, or in any combination you would like to put them in.) But even if they found using ‘knowingly’ [as a permissible alternative culpable state of mind] as a harmless error, and also found instructions 25-26 wording taking away my right of self-defense ‘harmless’ and the prosecutors misstatements of law [then capitalizing on all these in closing] and the lack of better instructions [on sudden combat, heat of passion, specific intent and Castonguay] all individually ‘harmless error.’  But when all put together is a plain/ major denial of due possess, and proof of infective assistance of counsel.  Especially in light of all the New [and old] evidence I gathered supporting my actual innocence.   (And that evidence supported by Exhibits 1 and 6         

Even if the Court thought that Alexander and Rigby’s perjured testimony [on the why and HOW they ALWAYS do those No-knock search warrants] alone was ‘harmless’ and maybe even the prosecutors misstatements [of facts and laws], was ‘harmless error’ and all of Stevens perjured testimony  and J. priors’ “head shot testimony and/or the suppression of Exhibit 7 Police Report [with ALL those ‘Officer Identifications’ and ALL those Identifications prior to the first kick –showing their consciousness of guilt and starting point to obstruct justice] finding each one on  their own as  a ‘harmless error.’  But when all coupled together and coupled with Bortolussie’s busted attempted perjury, and this whole pattern of perjury and conspiracy to obstruct justice [all the stories changing as a group, and even lying under oath trying to change and keep up with the group] coupled with that ‘consciousness of guilt’ Exhibit 7 Police Report, coupled with the supporting misstatement of the facts and laws by the prosecutor.  And coupled with New Evidence of my actual, factual Innocence.   How would these not fall under ‘plain error’, Manifest injustice, a miscarriage of justice, requiring a reversal and/or New Trial? 


***Thank you, if you have read this far.  What part of this does not/did not require an acquittal, new trial or retrial?  And/or criminal charges against Dent, Potter, Stevens, Alexander, Rigby and others?


[1] Chief Justice Michael Zimmerman did address this at one time; that it was a bit of a farce to think/expect one could.

[2] Like, the Courts should view Pro Se litigants more liberal then real attorneys, procedural defaults can be over looked in the interest of justice/for public trust in the Courts, things like prosecutorial misconducts, knowingly vs intent, case decisions like ‘Huff’, ‘Castonquary’, ‘Napue’, ‘Strickland’, ‘Siddiqi (in 92)’ ‘Buck’ ‘Gideon’ and others….

[3] And other important damaging/prejudicial statements on implied intent, [my] credibility and/or just to obstruct justice.

[4] I don’t know how he would have known what I said because he was a witness and sequestered??? 

[5] Trying to make me look like I’m lying/ that I’m the Liar in this case.

[6] Straight police misconduct/corruption  -LA, Rampart Division, wrongful conviction style; Rodney King beating but in the Courtroom action; New York toilet plunger handle up the anis style of Courtroom testimony/action.  As shown by all the above along with Bortolussi’s flagrant and busted perjury attempt on page 8 of Exhibit 5 and that whole pattern of their lying/lying as a group, with NO one outside that clique of officers hearing that alleged officer notification even this “officer identification” is against all the evidence in Exhibits 1, 2, 3, 4 and 6.

[7] Even though Buck was an active case with the State arguing hard that Brown thought and assumed that he had a No-knock/no announce warrant and then acted accordingly (executing it No-knock style). Or that the “police” are always asking for and arguing for the need Not to give notice.  Or that he couldn’t put 2 &2 together with all these inconsistencies and contradictions to each other, reality and the legislative intent of 77-23-10.2 as he knows it to be.   

[8] As all evidence is indicating  (Exhibits 1, 2, 3, 4, 6)– There was No officer identification that night at least not before the shooting.  That this is the worst kind of police misconduct, lying to obtain a false conviction.  Also see Exhibit 7 for those lies/ intentions to obstruct justice.

[9] See S. Becerra’s, excited utterance statements in Exhibit 3 and in Exhibit 4                                                                          

[11] See Exhibit 3 for those statements – further supported by the excited utterances in Exhibit 4 / The Truth, and Exhibit 6

[12] And would have shown that this Forced Entry No-knock warrant was executed just like they asked for (and ordered to do) in Exhibit 2 and as shown and done through out all of Exhibits 1 & 6.  

[13] And that these cops made up that “officer notification”/ “announcement” to intentionally obstruct justice

[14] Thus showing not only their lack of credibility, honesty and integrity as men and witnesses but also their consciousness of guilt.  -Why all this lying/witness tampering? –Because there was no  “officer notification”.  

[15] It is straight Bullshit!  It doesn’t match up with any of the cases or sworn statements in Exhibits 1 or 6.  It doesn’t match up with their earlier testimony/affidavit to the lower court or it’s order in Exhibit 2.  It doesn’t match up with their-own sworn Trial Court testimony.  There was NO officer identification/“announcements” that night. 

[16] That is why it was suppressed and withheld. 

[17] Jury instruction 30 falls under this also, but more so because of all the prosecutor’s misconduct and misleading statements and also lack of further/better instructing.

[18] Like #25-26, and allowing the use of “knowingly”

[19] See all of Exhibit 3

[20] See Exhibits 6, 1 and 2 (for this armed assault/forced entry) and further supported in this case by Exhibits 3 & 4. 

[21] This changing as a group; the lying/inconsistencies all changing together in that conspiracy pattern; from none in exhibits 3 & 4, to all those in Exhibit 7 to their mostly “two simultaneouslys” in Court to the one in between.  See Exhibit 5e for these inconsistencies and/or my Web page for a better break down of this conspiracy pattern. ) 

Subpages (1): Ignored Case Law