Transcript
mkhart Man Seeks Vindication from Wrongful Conviction Dear Community at Large: My name is Jonathan Galen McPherson, I am 40 years of age, a single-father of (6) children, (3) boys and (3) girls, and I was born and raised in Elkhart, Indiana. I was wrongfully convicted at trial of (2) counts for dealing in Cocaine, (1) count of maintaining a common nuisance, (1) count of unlawful possession of a firearm by a Serious Violent Felon (SVF), and for being a habitual offender. The dealing in Cocaine charges are classified as Class-'A' Felonies, maintaining a common nuisance charge was classified as a Class-'D' Felony, the unlawful possession of a firearm by a serious violent felon is classified as a Class-'B' felony - and the habitual offender charge classified and applied as a sentencing enhancement. I faced (20-50) years on the Class-'A' felonies, (2) years on the Class-'D' felony, (20) years on the Class-'B' felony, and (30) years on the habitual nuisance enhancement - a total of (100) years. Virtual Life! I was arrested on May 30^'', 2012, after the Elkhart Police raided my girlfriend's house located at 412 Brady Street, Elkhart, Indiana - 46516. I was transported to the Elkhart County Correctional Complex situated at 26861 C.R.-26, Elkhart, Indiana 46516, that night. On June 4 ^ 2012, I was formally charged for the multiple felonies. On June 2012, I was arraigned by video and appointed a public defender and held on a $500,000 dollar bond; I was devastated. On August 2012, an investigator for the Elkhart County Public Defender's Office showed u p at the Elkhart County Correctional Complex to interview me; he identified himself as "Clyde Brown." The investigator told me that he was sent by my court-appointed attorney "Matthew Johnson." The investigator goes on to say that the Elkhart County Organized Crime Unit conducted (2) "controlled buys," and that I was a suspect as a result and that he was there to let me listen to the audio and view the video evidence. The first alleged "buy" was on May 2012, with a Confidential Informant "Thomas Michael Smith" (aka) CS 07-030. The investigator said that he listened to the audio recording of the phone conversation between informant and caller about someone advising this informant to come to the residence of 412 Brady Street, Elkhart, Indiana 46516, to purchase Cocaine and that the audio recording was consistent with the affidavit for search warrant, filed by Officer "Tim Freel" #366, on May 2012. I told this investigator that ''there was no way that I was on audio telling no one to come to 412 Brady Street, Elkhart, Indiana 46516, to purchase Cocaine or anything to do with drugs." This investigator said that he heard the audio and that he read the information in my affidavit for search warrant submitted by Officer "Tim Freel" #366 who, by the way, was the same officer w h o conducted the "buys." I said../'if this officer stated information in his affidavit for search warrant, that I had told anyone to go to 412 Brady Street, Elkhart, Indiana 46516, to purchase Cocaine or any other drug was false information to obtain the search warrant." [1] This investigator said ''Well I got the audio recording and I heard it." I said..."well let me listen to it." The investigator pulled up the audio recording on the computer, and pushed 'play/ I heard a phone ringing, and then someone said "'Hello/' The informant said../'Man, I fucked up, I got $100.00 dollars, are you good?" Someone said..."yeah." The informant said..."I'm gone come by and talk to you about getting hooked up." Someone say "OK." That was the complete phone conversation that was recorded. The investigator said..."ifas that you on the phone?" I looked at him and smiled. He said... "you can tell me, this interview is confidential." I said... "hell no." The next thing I said was... "Mr. Brown, I thought you said that you heard someone tell this informant to come to 412 Brady Street Elkhart, Indiana, 46516, to purchase Cocaine." The investigator didn't say anything...1 said... "Mr. Brown, didn't you say that this officer "Tim Freel" #366, stated in his affidavit for Search Warrant, that he had an audio recording that someone "me," told this informant to come to 412 Brady Street, Elkhart, Indiana 46516, to purchase Cocaine?" The investigator said..."ygs." I said..."did you hear someone tell this informant to come to 412 Brady Street, Elkhart, Indiana 46516, to purchase Cocaine or any other drugs?" The investigator said..."no." I said..."yot^ and I both know, that the information that this officer "Tim Freel" #366, stated in his affidavit for search warrant, that someone told this informant to come to 412 Brady Street, Elkhart, Indiana 46516, to purchase Cocaine, was not the truth." The investigator didn't say anything. I said..."let me see the video recording of this alleged buy." The investigator L 0 0 K E D at the computer and said..."there is no video recording." I said..."there is no video recording?" The investigator said..."no-'' I said..."Mr. Brown, you done lied to me 3 time already, and you have not been here 20 minutes!" The investigator said..."How's that?" I said... "first, you said that you had an audio recording of me telling this informant to come to 412 Brady Street, Elkhart, Indiana 46516, to purchase Cocaine, and you didn't. Secondly, you told me that you heard the audio recording of me telling this informant to come to 412 Brady Street, Elkhart, Indiana 46516, to purchase Cocaine. And I said, now that we both listened to (the audio) together, no one told no one to come anywhere to purchase anything, and third, you said that you had a video recording, that's 3 lies in less than 20 minutes." I told the investigator that the audio and video evidence concerning this alleged "buy" on May 16% 2012, falls short of proving that I was involved in dealing drugs. The second alleged "buy" was on May 2012, with confidential informant "Yolonda Johnson" (aka) CS 12-008. The investigator said that he viewed the audio and video recordings. Just like the alleged "buy/' this Officer "Tim Freel" #366 who conducted the alleged "buys/' stated in the affidavit for search warrant that I told this informant "Yolonda Johnson" CS 12-008, to come to the residence at 412 Brady Street, Elkhart, Indiana 46516, to purchase Cocaine. This Officer "Tim Freel" #366 affirmed under the pains and penalty of perjury in affidavit for search warrant, that he had video and audio of the alleged "controlled buys" on May 16^^ & May 18* 2012, to obtain the search warrant. The investigator pulled up the audio recording on the computer of this alleged "buy" with informant "Yolonda Johnson" (aka) CS 12-008, and pushed "play." I heard a phone ringing then someone said "Hello." The informant said "Hey Boo, I got that 50. that I said that I was going to get, remember that I was going to get that 50?" Someone said... "yeah." The informant said "I'm going to call you when I get in the alley." Someone said..."OK" That was the complete phone conversation. I asked the investigator..."where did he and this Officer "Tim Freel" #366, who conducted the both alleged "buys" on May W^, & 2012, get that this unknown caller told both of these informants to come to 412 Brady Street, Elkhart, Indiana 46516, to purchase Cocaine, out of the audio recordings when no addresses were never mentioned, nor was Cocaine or any other drug was agreed to he sold or mentioned to be purchased." The investigator didn't say anything. So I said..."^o you have a video of this alleged "buy?" [2] The investigator said... "yes." I said "let me see it." The investigator pulled up the video recording and pushed ""play/" The officers in charge of surveillance during the alleged ''buy'' put a cheap hand-held video recorder on the front porch of the residence situated at 413 Jefferson Street, Elkhart, Indiana 46516. The video recorder was about one block away from the residence of 412 Brady Street, Elkhart, Indiana 46516. The video recorder was set up at the back of the residence at 412 Brady Street, Elkhart, Indiana 46516, to watch the back door. The video recording showed two unidentified black males in the alley behind the targeted residence at 412 Brady Street, Elkhart, Indiana 46516. One black male was on foot and the other black male was on a bicycle by some tall bushes next door to the targeted residence of 412 Brady Street, Elkhart, Indiana 46516, and walked between the houses and then disappeared. A few minutes later, the video recording shows the informant come into view of the camera. The informant walks down the alley right past the targeted residence of 412 Brady Street, Elkhart, Indiana 46516, and out of range of the video recorder for (2) minutes. The informant walks back into view of the video recorder and goes and stands in the yard next door to the targeted residence of 412 Brady Street, Elkhart, Indiana 46516, behind some extremely tall bushes that prevented her from being seen on the video recording. Moments later, a black male comes out of the targeted residence of 412 Brady Street, Elkhart, Indiana 46516, and was observed in the yard; you can hear the black male talking to the dog which was in the back yard barking. A few minutes later, the informant came from behind the bushes and walked away, towards the same way she came. The video recording never shows this unknown black male who came out of the back door of the targeted residence of 412 Brady Street, Elkhart, Indiana 46516, approach this informant at all because of these extremely tall bushes that this informant went and stood behind. This video recording does not support that a "controlled buy" even took place, and being that the video recorder was a block away from the targeted residence of 412 Brady Street, Elkhart, Indiana 46516; no one can be identified because of the poor quality of the video recorder. The officer who staged the video recorder. Officer "Andrew Whitmyer," said that I "Jonathan G. McPherson" exited the rear of 412 Brady Street, Elkhart, Indiana 46516, and met up with the informant and appeared to conduct a hand-to-hand transaction. This Officer "Andrew Whitmyer" does not know me at all, nor has he ever heard my name in Elkhart, Indiana, in his career as a police officer or prior to him becoming a police officer. Officer "Andrew Whitmyer" never 'personally observed' anything that pertained to both alleged "controlled buys" on May 16^^ or May 2012. My question would be how can this Officer "Andrew Whitmyer" honestly say or make a positive identification of a person that he does not know or can see on a video recording. All of the officers that participated in both alleged "controlled buys" on May 16* & 18* 2012, never 'personally observed' with their own eyes, anything that consisted of these two confidential informants coming to the residence of 412 Brady Street, Elkhart, Indiana 46516, to obtain Cocaine from me. I would like for my readers to know what a "controlled buy" is and what a "controlled buy" consists of. Drug-dealing in Cocaine under Indiana Code: 35-48-4-1, was the actual, or constructive transfer from a defendant to another controlled substance now under Indiana Code 35-48-1-11, the state is required to show that the defendant possessed the Cocaine before the "controlled buy" and transferred it to the confidential informant. [3] In order to prove that I dealt Cocaine under LC. 35-48-4-1, the state has to prove that I possessed Cocaine before the ''buy'' and the giving it to the informant during the "buy." In my case. The State of Indiana never had any evidence at trial or prior to trial, that I possessed Cocaine before or during the alleged "controlled buys" on May 16* & 18^ 2012, and transferred it to the informants under Indiana Code 35-48-4-1, to prove that I violated or dealt Cocaine under Indiana Code 35-48-4-1. I am now going to tell you what a ''controlled buy'' i^ and what it consists of under Indiana case law. A properly conducted "controlled buy" will permit an inference that the defendant had prior possession of a controlled substance. A "controlled buy" consists of searching the person who is to act as the buyer, removing all personal effects, giving her or him money with which to make the purchase, and then sending her or him into the residence in question. Upon her or his return, he or she is again searched for contraband. Except for what actually transpires within the residence, the entire transaction takes place under the direct observation of the police. They ascertain that the buyer goes directly to the residence and returns directly, and they closely watch all entrances to the residence throughout the transaction. Now readers that you have read what a properly conducted "controlled buy" consists of under Indiana law, you can compare it to the alleged "controlled buys" that the Elkhart Police Department Drug Unit allegedly conducted against me on May W \ & 18* 2012, with CI "Thomas Michael Smith" CS 07-030, the officers said that they searched the informant before the alleged buy and after the buy. Now readers, this is where it gets complicated. The alleged buy did not take place under the direct observation of none of the officers that participated in this alleged "buy." No officer that participated in this alleged "buy" 'personally observe' this informant arrive, enter or exit the residence of 412 Brady Street, Elkhart, Indiana 46516, nor did any officer 'personally observe' the informant return to them directly, after the alleged "buy." No officer that participated in this alleged "buy" 'personally observed' and closely watched all entrances to the residence of 412 Brady Street, Elkhart, Indiana 46516, throughout the transaction. With that being said readers, the police only searched this informant pertaining to this alleged "buy" on May 16* 2012. Everything else that consisted with this "controlled buy" that has been mentioned that you read, did not take place, and was not verifiable by police pertaining to this alleged "buy." The second alleged "buy" on May 18* 2012, with CI "Yolonda Johnson" CS 12-008, the officers said that they searched the informant before the alleged "buy." Now readers, this is where it gets complicated. The officer that searched the female informant was a man. Everybody in their right mind knows that a man can't properly search a female. That said, we also should know the search of the informant was improperly done. This alleged "buy" did not take place under the direct observation of the police. No officer 'personally observed' this informant arrive, enter or exit the residence of 412 Brady Street, Elkhart, Indiana 46516, nor did any officer 'personally observe' the informant return to them directly after this alleged "buy." No officer 'personally observed' and closely watch all entrances to the residence of 412 Brady Street, Elkhart, Indiana 46516, throughout the transaction. To make matters worse readers, this informant never showed up at trial, but the prosecutor showed the video recording at trial to the [4] jury, and my attorney didn't even object to the video recording being shown without the informant being there to testify, or to be cross-examined concerning the video recording! Unfortunately readers, I was "'railroaded'' at my trial by the judge, prosecutor, police and my court-appointed public defender-attorney. I was found "guilty" of all charges and was sentenced to (93) years to the Indiana Department of Corrections. My family and children also have suffered as a result of me being taken away from them. My family is unable to contribute to my survival and lawyer fees. So, I sit in my cell (22) hours out of the day and in need of your support. If there's any way that you can help dear reader, I am asking for contributions of whatever you can make. I can be reached at the address below for any and all financial contributions, and for all general communications, please write me at: Jonathan G. M c P h e r s o n , # ' ' f 9 M 4 3 3 cell- i ? t H u Wabash Valley Correctional Facility (WVCF), P.O. Box 1111, Carlisle, Indiana 47838 Feel free to also make contributions to: Brenda McPherson, 828 N. Mildred Avenue, Truman, Arkansas 72472 There is an alternate electronic source for communicating through jpay.com. All you need is my name and registration number and for you to set up an account with JPay via your computer or a mobile phone - all the information you need to set up an account is at the JPay website. Thank You & God Bless! [5]
