United States District Court, N.D. Indiana, South Bend Division
ROBERT E. WILLIAMS, Petitioner,
OPINION AND ORDER
T. MOODY UNITED STATES DISTRICT COURT.
E. Williams, a prisoner without a lawyer, filed a habeas
corpus petition challenging his conviction and 95-year
sentence for murder with a habitual offender enhancement by
the Marion Superior Court on September 30, 2011, under cause
number 49G04-1003-MR-23231. (DE # 1.)
deciding the petition, the court must presume the facts set
forth by the state courts are correct. 28 U.S.C. §
2254(e)(1). It is Williams's burden to rebut this
presumption with clear and convincing evidence. Id.
Williams does not dispute the Court of Appeals of
Indiana's summary of facts underlying this case:
On the morning of September 19, 2009, teacher Sandra
Bartenbach failed to show up at the elementary school in
Indianapolis where she worked. An assistant to the school
principal, Kimberly Brown, went to Bartenbach's house to
determine why she was not at school. Upon arriving at the
house, Brown noticed that the front door was ajar and the
rear sliding door also was open. Brown then decided to call
911. A police officer arrived on the scene and went into the
house, where he discovered Bartenbach's lifeless body in
a pool of blood in a bathroom. Bartenbach had been stabbed
approximately twenty-five times.
Williams lived across the street from Bartenbach with his
girlfriend, Sandra Emous, and Emous's parents. On
September 20, 2009, police went to Emous's house after
Williams became a person of interest in the investigation.
Emous told a detective that Williams had gone with a cousin
to Fort Wayne on the afternoon of September 19. Emous also
told the detective that she was aware of Williams having been
in Bartenbach's house only once, about a year and a half
before, when he helped Bartenbach move a dresser into the
house. Bartenbach's ex-husband confirmed that Williams
had helped move furniture on that occasion. Williams
submitted to an interview by police on September 21, 2009, in
which he stated that he had been in the house on a few other
occasions as well, in response to police questioning that
falsely implied that his fingerprints had been found
throughout the house.
Emous and Williams also told police that on the evening of
September 18, 2009, they had stayed at home, except for going
to a Meijer store at around 8:00 p.m. for approximately one
hour. Ten months after this original statement, Emous told
police that they also had gone to a Walmart store at about
1:00 a.m. on September 19, 2009. Records of a cell phone
belonging to Emous, however, showed that the phone had been
used during the evening of September 18th and early morning
hours of September 19th at locations other than Emous's
house, the Meijer store, or the Walmart store.
David Lucas of the Indianapolis-Marion County Crime Lab
(“Crime Lab”) swabbed various areas of
Bartenbach's house where there appeared to be blood
stains, as well as other areas where DNA from skin cells
might be expected to be found. Included among the items that
Lucas swabbed was the inside and outside of the front door
doorknob, which he determined had blood on it. The entire
doorknob itself was removed and taken to the Crime Lab. Lucas
also attempted to lift fingerprints in various areas of the
house, but no fingerprints matching Williams were recovered.
Judith Macechko, a serologist with the Crime Lab, examined
most of the items or swabs that Lucas had collected to
confirm whether any of them contained human blood or seminal
material. She did not, however, test the front door doorknob
for human blood because Lucas had already collected blood
samples from it. Any items that she confirmed were blood were
marked for further DNA testing; she found no seminal
material. She also swabbed the front doorknob for possible
skin cell samples, which were marked for further DNA testing.
Tonya Fishburn with the Crime Lab completed the DNA testing
on the items submitted by Lucas and Macechko. Fishburn
determined that blood from the front door doorknob collected
by Lucas was Williams's, based on the DNA profile.
Williams's DNA was not found in samples from other
locations in the house. On March 23, 2010, Williams was
charged with the murder of Bartenbach, as well as Class A
felony robbery. The State subsequently added a habitual
offender allegation. Williams was already in the Marion
County Jail on another charge before this date. Williams
spoke with Emous on the phone several times, and they were
recorded discussing whether Williams's DNA might be found
in Bartenbach's house. Emous did some research on
forensic DNA testing and told Williams that DNA could be left
at a scene by sweating. Williams responded, “Nah I
wasn't, wasn't none of that, ain't none of that
going on.” Ex. 195, 195(a).
Williams also told Emous what she should say to police,
including “Just be like ‘He was home with me he
did not go nowhere. And he was at home with me and my family
was home.'” Ex. 196, 196(a). When Emous told
Williams that police wanted to question her mother, Williams
told Emous that she needed to “lace mama up . . .
.” Ex. 198, 198(a). Eventually, Williams was forbidden
from speaking with Emous on the phone. Williams then enlisted
a fellow inmate to make calls to Emous and pass along coded
messages to her. The inmate believed the messages were
intended to emphasize to Emous that she be consistent in her
statements to police. Also, after it was revealed that
Williams's DNA was found in a blood stain at
Bartenbach's house, Emous told investigators for the
first time that she recalled Williams having helped
Bartenbach unload groceries at her house two days before the
murder and that he had accidentally cut himself while doing
so, causing his knee to bleed. On April 4, 2011, the State
filed a request that a video deposition of Macechko be
scheduled to be used at trial in place of her live testimony.
Specifically, the State asserted that Macechko would be
unavailable to testify at trial because she had retired from
the Crime Lab and moved to Cleveland, Ohio, to care for her
gravely ill elderly mother. Williams objected to the request
for a video deposition in lieu of Macechko's trial
testimony. The trial court overruled this objection. On June
23, 2011, a deposition of Macechko was conducted using the
internet video communication system known as Skype. Macechko
was located in Cleveland along with a Marion County deputy
prosecutor, a Cuyahoga County, Ohio, deputy prosecutor, and
the lead police detective. Located in a courtroom in
Indianapolis were the trial judge, Williams, his attorney,
another deputy prosecutor, and IT personnel.
Williams's jury trial was held on September 6-12, 2011.
Williams objected to the State's use of Macechko's
Skype deposition in lieu of her live testimony, and the trial
court overruled the objection. The jury found Williams guilty
of murder but not guilty of robbery and also found that he is
a habitual offender. The trial court sentenced Williams to a
term of sixty-five years for murder, enhanced by thirty years
for the habitual offender finding, for a total sentence of
ninety-five years executed.
Williams v. State, 970 N.E.2d 267 (Ind.Ct.App.
2012)(table); (DE # 9-5 at 2-6).
direct appeal, Williams argued that the trial court abused
its discretion when it determined that Judith Macechko was
unavailable under Indiana Evidence Rule 804, and that the
admission of her videotaped deposition at trial violated his
right to meet the witnesses face to face under Article I,
Section 13 of the Indiana Constitution. (DE # 9-3 at 9.)
Williams also invoked the United States Constitution's
Sixth Amendment Confrontation Clause for the first time in
the body of his appellate brief. (DE # 9-3 at 15.) The Court
of Appeals of Indiana addressed Williams's Sixth
Amendment argument on the merits even though he had not
raised it in the trial court and affirmed the trial court.
Williams v. State, 970 N.E.2d 267 (Ind.Ct.App.
2012)(table); (DE # 9-5 at 2-6). Williams sought transfer to
the Indiana Supreme Court, where he rephrased his argument to
explicitly invoke the Sixth Amendment as follows:
The trial court erred when it found a critical State witness
unavailable under Evidence Rule 804 in violation of
Defendant's right of confrontation under the Sixth
Amendment of the United States Constitution and the procedure
used to take her testimony for use at trial violated his
right of confrontation under Article I, Section 13 of the
Indiana Constitution and such error was not harmless[.]
(DE # 9-6 at 3.) On August 30, 2012, the Indiana Supreme
Court denied transfer. Williams v. State, 974 N.E.2d
476 (Ind. 2012)(table).
filed a petition for post-conviction relief on December 14,
2012, under cause number 49G04-1003-PC-023231. That petition
was still pending when Williams filed his habeas petition in
this court on October 13, 2015. (DE # 1.) After his habeas
petition was filed here, Williams filed a motion in his
post-conviction relief case asking to withdraw his petition,
which the court granted on July 11, 2016.
habeas petition, Williams raises only one ground for relief
which can be simplified as follows: that the trial court
erred in permitting Macechko's deposition testimony to be
admitted at trial in violation of the Sixth Amendment's
confrontation clause, and thereby denied him a fair trial,
and the Court of Appeals of Indiana erred when it found that
any error on the part of the trial court was harmless. (DE #
considering the merits of a habeas petition, the court must
ensure that the petitioner has exhausted all available
remedies in state court. 28 U.S.C. § 2254(b)(1)(A);
Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir.
2004). Respondent concedes that ...