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Supplemental Exhibit Record in Support of Petition for Post Conviction Relief

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This is the supplemental exhibit record that I filed as a part of my petition of post conviction relief

Text of Supplemental Exhibit Record in Support of Petition for Post Conviction Relief

STATE OF INDIANA COUNTY OF MARION JEFF HOWELL vs. STATE OF INDIANA ) ) ) ) ) ) ) ') ) IN THE MARION COUNTY SUPERIOR COURT CRIMINAL DIVISION 3 49G03-0807-PC-158636 ( ' (' ' ' ' I', II PETITIONER'S SUPPLEMENTAL EXHIBIT RECORD IN SUPPORT OF PETITION FOR POST CONVICTION RELIEF JeffHowell #194392 New Castle Correctional Facility P.O. Box A New Castle IN 47362 Petitioner, prose Exhibit 41 Exhibit 42 Exhibit 43 Exhibit 44 Exhibit 45 Table of Contents* Affidavit in Support of Petition for Post Conviction Relief . .. . . . ... . ............ 217 Affidavit of Malcolm McMakin ... . ......................... . ......... . .... . ...... . .. 225 Yahoo Terms ofService ......................................... . ........... . ...... . .. 229 Tips for Chatting Safely . . .. . .......... . . . ........ . .. . ....... . ..... . ................... 231 Transcript of Chatbot Conversation ... . ........ . .............. . ............ . .. . . . . .. 233 Affidavit ... .. .. . ............... . ... . ....................... .. . . ................ . ........ 237 Certificate of Service .. . .. . .. .... . ....... . ................. . ..... . ... . .... . ... . ........ 237 *Note: Exhibit and page numbers continued from Exhibit Record filed previously. 216 EXHIBIT 41 AFFIDAVIT IN SUPPORT OF PETITION FOR POST CONVICTION RELIEF 217 STATE OF INDIANA COUNTY OF MARION JEFF HOWELL, Petitioner v. STATE OF INDIANA, Respondent ) ) ) ) . . .) ) ) ) ) ) ) ) SS: IN THE MARION COUNTY SUPERIOR COURT CRIMINAL DIVISION 3 CAUSE NO. 49G03-0807-PC-158636 @ JUN 0 7 2010 . CUI!K P THr MARION GIRe\.11'1' AFFIDAVIT IN SUPPORT OF PETITION FOR POST CONVICTION RELIEF Comes now the Petitioner, Jeff Howell, prose, and being first duly sworn upon his oath, deposes and says as follows: 1. I am the Petitioner in post conviction relief proceedings under above-captioned cause. 2. In support of the allegations presented in my prose Petition for Post Conviction Relief, I swear and affirm the following facts: On or about May 1, 2008, I, Jeff Howell, did enter the adult-restricted Yahoo chat rooms, where I observed, among the proliferation of chat bots, a screen name that was not engaging in conversation inside the chat room. Not knowing if this was also a chat bot or an actual human being, I observed the screen name, indydiamondgirl08, for some time. While observing the screen name in the chat room, I viewed its associated profile, which showed a photo of a female, purportedly named "Ash" or "Ashley" and who was purported to be in Indianapolis. There was very little information displayed, unlike the information typically found on a profile for a real human being. There was no age listed on indydiamondgirl08' s Yahoo profile. Believing, at thi s time, that "indydiamondgirl08" was, perhaps, simply another chat bot, based on the fact that the Yahoo chat rooms are proliferated with chat bats, I did a Google search of the screen name believing that, perhaps, it might reveal whether or not "indydiamondgirl08" was a chat bot or /' _,not. To my surprise, Google returned a "hit" on the screen name, which was a web page listing a number of screen mimes in addition to indydiamondgirl08. Among the information contained on this web page, were details indicating names listed thereon, were actually . . . . . ... .. - .. - . . . . . . ' . . ... . . . .. ... ' .... . .::: .. _ .. _. : ::: : :::-:. :.. :- ... -:-.-.": - .:. :-:::.:;. ::.-: : :: .. : .. : : -. --. - -- -screen names being used. by law enforcement agencies engaged in Internet decoy operations. The search results for indydiamondgirl08 revealed that this screen name was, apparently, being used by "Darin Odier" and "Indianapolis, Ind." was listed under the "department" heading. The last column of the search results page was labeled "Comments," with most ofthe entries listed as "Confirmed" or "Probable but unconf.", presumably an abbreviated version of"probably but unconfirmed." The word "confirmed" was included with the results for indydiamondgirl08. Thus, my conclusion was drawn that indydiariwndgirl08 was actually Darin Odier, whom I presumed to be a police officer, with the Indianapolis [Metropolitan] Police Department, and that this information had been confirmed in some way. I further concluded that this screen name and "" individual (Odier) were being used in Internet decoy operations. I then did a search for indydiamondgirl08 on MySpace, and did locate an associated profile, which, like the Yahoo profile, listed very little information. The age on the MySpace profile was listed as "99" (I have noted that the age now is listed as "1 01" on the most recent MySpace profile, which will be included in Petitioner's Exhibit Record1). There was no information on either profile that would definitively identify indydiamondgirl08 as a minor. Initially, I left the chat room area, and logged off of the computer. During the time I was not on the computer, the question occurred to me, "Why would a law enforcement agency be conducting a decoy operation in a chat room that was restricted to adults?" This, perhaps more than it should have, began to irritate me that a law enforcement agency, or perhaps a "lone" law enforcement officer, would be wasting resources, including time and tax-payer dollars, conducting such an operation in an environment where there would be no minors for a potential 1 As this Affidavit is being written, Petitioner is gathering infonnation for his Exhibit Record, which contain documentation and evidence suppOrting his allegations presented in this Affidavit as well as the entire Post Conviction Relief process. Zl? internet predator to contact. The more I considered this situation, the more infuriated I became, admittedly, more so than I probably should have been, but at the same time, it has always been a ultimately results in a waste of tax dollars, and the tax-payers, of which I am one, deserve a better use of their hard-earned money, which they have involuntarily provided to better their safety and security. Thus, after pondering whether this is a sufficient disbursement of the citizens' tax dollars in pursuit of their better protection, I decided to log back on to Yahoo chat, where I rejoined the Indiana chat room where the decoy had been observed, and saw that he was still in the chat room. I again observed him for several minutes, after which I made the decision, albeit perhaps a rash decision given how infuriated I was at the time, to engage indydiamondgirl08 in a conversation. My initial conversation was somewhat innocuous, sharing the familiar "a/s/1" (age/sex/location), in which indydiamondgirl08 claimed to be a 14 year old female from Indianapolis. My intentions were to draw out information from this screen name that would reveal that it was, in fact, a decoy. Among comments made during my initial conversation, I allowed several opportunities for the decoy to "redeem" himself, by, for example, asking him if he was a "cop looking for pervs" and using slang that would most likely only be known ts:> someone involved in law enforcement. Also during this initial conversation, I made no attempt to hide my identity, providing my real name, age, location, the fact that I also worked in law enforcement, as well as a link to my My Space profile where my photos could be found. Ifi had wanted to maintain my anonymity during any of the conversations, I most certainly could have done so, by using a proxy server or "web anonymizer," however, my intent was not to avoid discovery of my identity (bearing in mind that I also used my real name, location, and other information during the initial contact, that would easily identify me). Rather, I wanted to make it "easy" to find me, knowing that Odier would trace my IP address which would identify the connection point I was using to connect to the Internet. My intent was also to make Odier believe that I believed that he was a 14 year old girl, thus my conversation was tailored to that end. At no time did I ever believe I was actually communicating with a minor, based on the ...... - ..... -- ... --- ...... .. . . --- : . :"- -- .. -- :---- --- -- - - -------------- -- ----- -----------results that I had obtained from my Google search ofOdier's fictitious screen name. After the initial conversation with Oc;lier, I decided to switch to another screen name that I had created some time ago and one in which I had taken on the persona of an 18 year old female named Kristi Russell, with the screen name kristi_russell_90210. Knowing that Odier would be able to easily connect that screen name to the screen name I was initially using (john_doe8238), based on the fact that, assuming he would trace "Kristi's" IP address as well, the IP address would be identical to the one being used for the john_doe8238 conversation, I knew that Odier would eventually be able to tell that "Kristi" and I were one in the same. The conversation using the "Kristi" persona was explicit in tone in order to grab Odier 's full attention. Although this conversation was explicit, it was never obscene according to the standards adopted by the U.S. Supreme Court to define obscenity. Also, during this conversation, "Kristi" did offer to send Odier two photos, which he accepted, depicting nudity, but these photos did not constitute obscenity under the U.S. Supreme Court 's definition of obscenity. In addition, the fictitious "Ashley" (Odier) had to take affirmative steps to receive those photos, after being presented with previews of those photos, called "thumbnails," in order to actually receive the photos through Yahoo's photo sharing process. An individual has the option of not downloading any photo proposed to him or her during the photo sharing process if (s)he so chooses, for whatever reason. Thus, while this conversation might have been found to be "offensive" to some people, as well as the photos that were offered to Odier's fictitious persona, neither the conversation nor the photos were obscene, e v e ~ as to minors, under the U.S. Supreme Court's definition of obscenity2. Additionally, Odier's fictitious persona was not forced to view or download the two photos; he could have chosen to ignore them after viewing the 2 Petitioner will provide relevant citations in his Findings of Fact and Conclusions of Law. z - ~ I thumbnails. Odier's fictitious persona was also not forced to participate in the conversation, .. notwithstandingthe factthat the cqn_versatiqnJqqk.place,or was initiated in, an adult --- . .. . - . . ... .. . ..... . ___ .. ..... .... . . .. :: ... . . .. "' - :: - . -...:. --- :.: ; environment that is restricted to users who are 18 or older. An individual, whether an adult or a minor, certainly has the option of ignoring and even blocking messages from others that may be encountered in a chat room or otherwise on the Internet. If an Internet user finds a conversation offensive, (s)he can simply opt out of that conversation. There is no way to force someone into an unwanted conversation on the Internet. The conversation between "Kristi" and Odier's fictitious persona was carefully constructed so as not to violate any laws, even if it would have involved an actual minor. There was no solicitation for sex, and there was no solicitation to meet or otherwise make contact outside of the relative safe confines of the Internet. Although Odier's fictitious persona was ~ posed the question "would you ever want to meet" there was obviously never the intention to follow up on that, knowing that indydiamondgirl08 was actually Odier. Odier 's fictitious persona was also asked for "her" phone number, which was provided, but there was never an attempt to call that number, knowing that it was associated with Odier. While the "Kristi" conversation did involve female masturbation aimed at Odier's fictitious persona, masturbation by a minor, alone, in the privacy of his or her own home, is not a crime in Indiana, even when an adult female is "coaching" the minor involving a normal, healthy, activity. Again, Odier 's fictitious persona was not forced to engage in any conduct unwillingly. After the two initial primary conversations on May 1, 2008, there was little contact with Odier 's fictitious persona, except for an occasional message on the order of "hey, how are you doing?" These incidental messages were intended as "follow-up" contact to make Odier believe that I was still "interested" in whatever it was Odier thought I was interested in. My knowledge that, as ruled by the U.S. Supreme Court, the Internet receives full First Amendment protection, and the fact that these conversations took place or were initiated in im adult environment that is a chat room known to me to be restricted to individuals who are at ' ' least 18 years of age, along with the fact that I had done a Google search of Odier's fictitious - -,_ screen,name,, and that search.revealed tlJ.at indydiamondgirl 08. was iQ_fact ;:t$Ociated with Internet decoy operations, makes it clear that I had no criminal intent and that at no time did I believe I was in contact with an actual minor. Additionally, even if an actual minor had been involved, still no crime was committed as none of the actions that I took would have constituted a crime under current statutes. I am not a pedophile, hebephile, ephebophile, nor am I an Internet, or any other kind of, predator. My exhibits to be filed in this action will support the fact that I committed no crime_ I will also provide exculpatory documentation t ~ a t trial counsel failed or refused to present at trial, as well as support my allegations that Odier lied about Yahoo's chat room age restriction and the requirement to enter a date of birth when creating a Yahoo account/profile. _. Further Affiant sayeth naught. I hereby swear and affirm under the penalties for perjury that the foregoing representations are true and correct to the best of my knowledge and belief Affiant CERTIFICATE OF SERVICE I, JeffHowell, do hereby certify that a true and correct copy of the foregoing Affidavit in Support of Petition for Post Conviction Relief was served upon the Marion County Prosecutor (71 ~ J---/1 ~ 1 / . / this day of_-=_v_/_...,_"'"" __ ___, 2010, by placing a copy of same in the United States Mail , First Class, postage pre-paid. Petitioner, pro se Jeff Howell 2497 Middle Leesville Rd. Bedford IN 47421 EXHIBIT42 AFFIDAVIT OF MALCOLM MCMAKIN 225 SJ'j\ TE OF INDIANA COUNTY OF MARION JEFF HOWELL vs. STATE OF INDIANA ) ) ) ) ) ) ) ) ) IN THE MARION COUNTY SUPERIOR COURT CRIMINAL DNISION 3 49003-0807-PC-158636 49G03-0811-PC-270239 AFFIDAVIT Comes now the Affiant, Malcolm McMakin, and declaring under oath and penalty of perjury deposes and says the following in support of the Petition for Post Conviction Relief filed under the above-captioned cause: I have been acquainted with Jeff Howell since the early 1990s. I have a backgr6tmcl in law enfbrceinent, and have served, inter aiia, as a Chief Deputy C6roner and Speclal Deputy Sheriff. Along with Mr. I WaS ' . Homeland Security. Mr. Howell is a dedicated public servant with an admirable reputation among the law enforcement community. He does not take his oath lightly. He is well decorated, having been recognized by Governors, Senators, and Members of Congress. Mr. Howell had indicated to me, .prior to his trial, that he had engaged in the chat with Det. O(lier, knowing that he was actually chatting with Odier after conducting a Google search, the results of which revealed that the screen name used by Odier was actually Odier. Mr. Howell told me that he engaged Odier in the chat in order to challenge the constitutionality oflndiana's child solicitation statute. Mr. Howell told me that this chat occurred in a chat room that was restricted to adults. I was further told by Mr. Howell, prior to his trial, that he had documentation saved on a thumb drive that would prove his innocence. After his trial, Mr. told rile that his attorney to ilrty thiS' evidence and that Odier tnaL Mr. that-he' had friend to.log on tohis:yah:o() account and send innocuous Il1essages to Odier to simply prove that it cnuldbe done, because Odier had apparently indicated that no one could log on to an account other than the account owner. Mr. Howell also told me that he wanted that friend to testify at his trial. Prior to Mr. Howell's trial, I had expressed to Mr. Howell my desire to testify before the Court, however, I was never given the opportunity to testify about any of the matters presented in this affidavit. Further, Affiant Sayeth Naught. I hereby swear and affirm under the penalties for peijury that I have read the foregoing and that it is true and correct to the best of my knowledge, belief and recollection. )a;l}'i --,:" ... . 0. 0 0 '--,(\ , (\fln " -\ ,), . U Yahoo! Terms Center> Yahoo' Terms of Service Ernail Print Yahoo! Terms of Service 1. ACCEPTANCE OF TERMS Yahoo! Inc. ("Yahoo!") welcomes you. Yahoo! provides its service to you subject to the following Terms of Service ("TOS"), which may be updated by us from time to time without notice to you. You can review the most current version of the TOS at any time at: http://info. yahoo.com/legal/us/yahoo/utos/utos-173.html. In addition, when using particular Yahoo! owned or operated services, you and Yahoo! shall be subject to any posted guidel ines or rules applicable to such services, which may be posted from time to time. All such guidelines or rules (including but not limited to our Spam Policy) are hereby incorporated by reference into the TOS. Yahoo! may also offer other services that are governed by different Terms of Service. For instance, different terms apply to homesteaders on Yahoo! GeoCities or members of AT&T Yahoo! Dial or AT&T Yahoo! High Speed. 2. DESCRIPTION OF SERVICE Yahoo! provides users with access to a rich collection of resources, including various communications tools, forums, shopping services, search services, personalized content and branded programming through its network of properties which may be accessed through any various medium or device now known or hereafter developed (the "Service"). You also understand and agree that the Service may include advertisements and that these advertisements are necessary for Yahoo! to provide the Service. You also understand and agree that the Service may include certain communications from Yahoo!, such as service announcements, administrative messages and the Yahoo! Newsletter, and that these communications are considered part of Yahoo! membership and you will not be able to opt out of receiving them. Unless explicitly stated otherwise, any new features that augment or enhance the current Service, including the release of new Yahoo! properties, shall be subject to the TOS. You understand and agree that the Service is provided "AS-IS" and that Yahoo! assumes no responsibility for the timeliness, deletion. mis-delivery or failure to store any user communications or personalization settings. You are responsible for obtaining access to the Service, and that access may involve third-party fees (such as Internet service provider or ai rtime charges). You are responsible for those fees, including those fees associated wi th the di splay or delivery of advertisements. In addition , you must provide and are responsible for all equipment necessary to access the Service. 3. YOUR REGISTRATION OBLIGATIONS In consideration of your use of the Service, you represent that you are of legal age to form a bi nding contract and are not a person barred from receiving services under the laws of the Unrted States or other applicable jurisdiction. You also agree to: (a) provide true. accurate. current and complete information about yourself as prompted by the Service's registration form i the "Registrat ron Data") and (b) maintain and promptly update the Registration Data to keep it true. accurate, current and complete. If you provide any information that is untrue. inaccurate. not current or incomplete. or Yahoo! has reasonable grounds to suspect that such information is Seat -EXHIBIT44 TIPS FOR CHATTING SAFELY 231 YA:a:aor MEssENGER Tutorial s Contac t ne1p. Search Tios for Chattino Safelv Yahoo' Chat allows people from all over the world to chat. make friends and build communi ties. Chat Ciln OP fjn Pnrirhino exnNiPn('f' hut I?VPNnnf' Shnlltrl he 'lW;Jrp !hilt likP in il!lV Ollhlir.