UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

ROBERT E. WILLIAMS,

 Petitioner,

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 v. ) No. 3:15 CV 478

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WARDEN1,

 Respondent. 

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OPINION and ORDER

Robert 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.)

I. BACKGROUND

In 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 

 

1 The Respondent’s name was changed from Superintendent to Warden pursuant to Indiana 

Code § 11-8-2-7.
2

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 
3

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 
4

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).

On 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[.]
5

(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).

Williams 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.

In his 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 # 1.)

II. PROCEDURAL DEFAULT

Before 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 William

has exhausted his claim but argues that it is procedurally defaulted. 

There are two distinct ways in which a state prisoner can procedurally default a 

federal claim. Snow v. Pfister, 880 F.3d 857, 864 (7th Cir. 2018). The first occurs in “cases 

where the state court declines to address a petitioner’s federal claims because the 

petitioner did not meet state procedural requirements.” Id. In those cases, “the state 
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court judgment rests on an independent and adequate state ground and principles of 

comity and federalism dictate against upending the state-court conviction.” Thomas v. 

Williams, 822 F.3d 378, 384 (7th Cir. 2016)(citing Coleman v. Thompson, 501 U.S. 722, 729–

30 (1991)). 

The second type of procedural default “stems from the requirement that a state 

prisoner must exhaust his remedies in state court before seeking relief in federal court,” 

which requires the petitioner include his claims in “one complete round of the State’s 

established appellate review process.” Snow, 880 F.3d at 864 (quoting O’Sullivan v. 

Boerckel, 526 U.S. 838, 845 (1999)). This means “the petitioner must raise the issue at each 

and every level in the state court system.” Lewis, 390 F.3d at 1025. A petitioner “who has 

exhausted his state court remedies without properly asserting his federal claim at each 

level of state review has procedurally defaulted that claim.” Id. at 1026.

The Respondent argues that Williams has not fairly presented his claim to the 

State court because he did not raise the federal basis for his claim in the trial court.2 Fair 

presentment is required to avoid a federal court overturning a state court ruling 

without the state court first having an opportunity to correct a constitutional error. 

O’Sullivan v. Boerckel, 526 U.S. 838, 844–45 (1999). “Where a court has in fact ruled on a 

claim, there is no possibility of friction between the state and federal court systems 

 

2 The Respondent also argues that Williams’s claims are not cognizable to the extent he relies 

upon the Indiana Rules of Evidence or the Indiana Constitution. See Perruquet v. Briley, 390 F.3d 505, 511 

(7th Cir. 2004)(“[E]rrors of state law in and of themselves are not cognizable on habeas review.”). While 

Williams references violations of the Indiana Rules of Evidence or the Indiana Constitution, his petition 

has appropriately focused on his assertion that his rights under the United States Constitution were 

violated. (DE # 1 at 4.).
7

caused by the unseemliness of a federal district court’s overturning a state court 

conviction without the state court’s having an opportunity to correct the constitutional 

violation in the first instance.’’ Sandgathe v. Maass, 314 F.3d 371, 376–77 (9th Cir. 

2002)(internal quotations, citations, and brackets omitted). See also Jones v. Dretke, 375 

F.3d 352, 355 (5th Cir. 2004)(Sixth Amendment claim was exhausted despite petitioner’s 

failure to adequately present his federal claim where the state’s appellate court decided 

the issue on the merits.) Here, the Court of Appeals of Indiana addressed the merits of 

Williams’s Sixth Amendment claim despite his failure to invoke the Sixth Amendment 

in the trial court. And, Williams then presented that issue to the Indiana Supreme Court 

in his petition for transfer. Thus, the Indiana courts had a full opportunity to correct any 

error at the trial court level, and the claim is not procedurally defaulted.

III. STANDARD OF REVIEW

“Federal habeas review . . . exists as a guard against extreme malfunctions in the 

state criminal justice systems, not a substitute for ordinary error correction through 

appeal.” Woods v. Donald, 135 S.Ct. 1372, 1376 (2015)(quotation marks and citation 

omitted). 

An application for a writ of habeas corpus on behalf of a person in 

custody pursuant to the judgment of a State court shall not be granted 

with respect to any claim that was adjudicated on the merits in State court 

proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an 

unreasonable application of, clearly established Federal law, as 

determined by the Supreme Court of the United States; or
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(2) resulted in a decision that was based on an unreasonable 

determination of the facts in light of the evidence presented in the State 

court proceeding.

28 U.S.C. § 2254(d). 

[This] standard is intentionally difficult to meet. We have explained 

that clearly established Federal law for purposes of §2254(d)(1) includes 

only the holdings, as opposed to the dicta, of this Court’s decisions. And 

an unreasonable application of those holdings must be objectively 

unreasonable, not merely wrong; even clear error will not suffice. To 

satisfy this high bar, a habeas petitioner is required to show that the state 

court’s ruling on the claim being presented in federal court was so lacking 

in justification that there was an error well understood and 

comprehended in existing law beyond any possibility for fairminded 

disagreement.

Woods, 135 S.Ct. at 1376 (quotation marks and citations omitted).

Criminal defendants are entitled to a fair trial but not a perfect one. Rose v. Clark, 

478 U.S. 570, 579 (1986). To warrant relief, a state court’s decision must be more than 

incorrect or erroneous; it must be objectively unreasonable. Wiggins v. Smith, 539 U.S. 

510, 520 (2003). “A state court’s determination that a claim lacks merit precludes federal 

habeas relief so long as fairminded jurists could disagree on the correctness of the state 

court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011)(quotation marks omitted).

IV. ANALYSIS

Williams asserts that the trial court erred when it found that Macechko was 

unavailable for trial and allowed her deposition testimony to be admitted in violation of 

the Sixth Amendment’s Confrontation Clause. The Court of Appeals of Indiana 

recognized that “[u]nder the Sixth Amendment, out-of-court testimonial statements by 

a witness who does not appear at trial are inadmissible unless the witness is unavailable 
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to testify and the defendant had a prior opportunity for cross-examination.” Williams v. 

State, 970 N.E.2d 267 (Ind. Ct. App. 2012)(table)(citing Crawford v. Washington, 541 U.S. 

36, 53–54, 124 S. Ct. 1354, 1365 (2004)). The Court of Appeals of Indiana further 

recognized that the burden of demonstrating the declarant’s unavailability to testify at 

trial rests with the State. Id. (citing Garner v. State, 777 N.E.2d 721, 724 (Ind. 2002). Again 

relying on Garner, the Court of Appeals noted that:

In particular, the State must make a good faith effort to obtain a witness’s 

attendance at trial, regardless of whether he or she is out-of-state at the 

time of trial. Id. “Even if there is only a remote possibility that an 

affirmative measure might produce the declarant at trial, the good faith 

obligation may demand effectuation.” Id. at 724–25. “Reasonableness is 

the test that limits the extent of alternatives the State must exhaust.” Id. at 

725.

Id. After reviewing the facts of the case, the Court of Appeals of Indiana 

concluded that “this circumstance pushes to the very edge of the envelope as to 

whether Macechko truly was unavailable to testify at Williams’s trial,” but even 

if the State did not meet its burden, the error was harmless beyond a reasonable 

doubt. Id. The Court of Appeals of Indiana reasoned as follows: 

Possibly the most critical single piece of evidence against Williams was 

that a blood stain recovered from the front door doorknob of Bartenbach’s 

house was from Williams, based on the DNA profile. It was Lucas who 

first noticed that stain, removed the doorknob from the door, and 

swabbed it for blood at the Crime Lab, and it was Fishburn who 

conducted the final DNA testing. Macechko’s involvement in the handling 

of this item of evidence was slight. As indicated in her deposition 

testimony, at most, Macechko handled the doorknob during the course of 

the testing process and was involved in the chain of custody of the blood 

stain swabbed from it, but no more.
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Although the State bears a higher burden to establish the chain of custody 

of “fungible” evidence, including blood samples, the State need not 

establish a perfect chain of custody. Troxell v. State, 778 N.E.2d 811, 814 

(Ind. 2002). The State need only give reasonable assurances that the 

evidence remained in an undisturbed condition. Id. “Moreover, there is a 

presumption of regularity in the handling of evidence by officers, and 

there is a presumption that officers exercise due care in handling their 

duties.” Id. In particular, the State need not present the testimony of every 

technician who handled a particular piece of evidence in order to establish 

an adequate chain of custody. See Kennedy v. State, 578 N.E.2d 633, 638–39 

(Ind. 1991), cert. denied.

Here, we are convinced the State could have laid an adequate chain of 

custody foundation for the introduction of Fishburn’s testing results, 

finding Williams’s DNA in a blood stain on Bartenbach’s front door 

doorknob, based upon Fishburn’s and Lucas’s testimony. Macechko did 

not participate in either the original collection of this evidence, the 

determination that it should be subjected to DNA testing, or the ultimate 

DNA testing itself. We conclude that even if it was error to introduce 

Macechko’s deposition into evidence, and we do not specifically decide 

that question, any such error was harmless beyond a reasonable doubt.

Williams v. State, 970 N.E.2d 267 (Ind. Ct. App. 2012); ECF 9-5 at 10–11.

Williams disagrees with the Court of Appeals of Indiana’s determination that the 

error was harmless beyond a reasonable doubt. Williams asserts that, if Macechko’s

testimony had not been permitted, then none of the DNA evidence linking him to the 

crime scene would have been admissible. Williams further asserts that, without the 

DNA evidence, the remaining evidence would not have been sufficient to support a 

conviction beyond a reasonable doubt, and that the trial court’s error had a substantial 

and injurious effect on the verdict. 

The United States Supreme Court has determined that the Sixth Amendment’s 

Confrontation Clause applies to “witnesses’ against the accused—in other words, those 
11

who ‘bear testimony.’” Crawford v. Washington, 541 U.S. 36, 51 (2004). Furthermore, 

“Where testimonial evidence is at issue, ... the Sixth Amendment demands what the 

common law required: unavailability and a prior opportunity for cross-examination.” 

Id. at 68. “[A] witness is not ‘unavailable’ for purposes of the . . . confrontation 

requirement unless the prosecutorial authorities have made a good-faith effort to obtain 

his presence at trial.” Barber v. Page, 390 U.S. 719, 724 (1968). “The lengths to which the 

prosecution must go to produce a witness . . . is a question of reasonableness.” Ohio v. 

Roberts, 448 U.S. 56, 74 (1980)(quoting the concurring opinion in California v. Green, 399 

U.S. 149, 189 (1970)).3

The Court of Appeals of Indiana conceded that the trial court’s determination 

that Macechko was unavailable pushed the envelope, but it avoided determining

whether the Sixth Amendment was violated and instead found that, even if there were 

a violation, it was harmless beyond a reasonable doubt. In reaching this decision, the 

Indiana Court of Appeals applied the correct standard. The United States Supreme 

Court held in Chapman v. California that “before a federal constitutional error can be 

held harmless, the court must be able to declare a belief that it was harmless beyond a 

reasonable doubt.” Chapman v. California, 386 U.S. 18, 24 (1967). See also Delaware v. Van 

Arsdall, 475 U.S. 673, 681 (1986)(“Since Chapman, we have repeatedly reaffirmed the 

 

3 While Crawford abrogated Ohio v. Roberts to the extent that it permitted an unavailable 

witnesses’ testimony to be admitted as long as there was a judicial determination of reliability, the

discussion regarding what constitutes unavailability remains relevant, and is consistent with both earlier 

and later Supreme Court precedent. See California v. Green, 399 U.S. 149, 189 (1970); Hardy v. Cross, 565 

U.S. 490, 495 (2011).
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principle that an otherwise valid conviction should not be set aside if the reviewing 

court may confidently say, on the whole record, that the constitutional error was 

harmless beyond a reasonable doubt.”)

While the Court of Appeals of Indiana correctly identified Chapman’s “harmless 

beyond a reasonable doubt” standard, on habeas review, this court applies a different 

test regardless of whether the Indiana Court of Appeals found that any error was 

harmless beyond a reasonable doubt. Jones v. Basinger, 635 F.3d 1030, 1052 (7th Cir. 

2011). This court must determine whether the Sixth Amendment violation had a 

substantial and injurious effect on the jury’s verdict. Brecht v. Abrahamson, 507 U.S. 619, 

633 (1993)(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).

We hold that in § 2254 proceedings a court must assess the prejudicial 

impact of constitutional error in a state-court criminal trial under the 

“substantial and injurious effect” standard set forth in Brecht, supra, 

whether or not the state appellate court recognized the error and reviewed 

it for harmlessness under the “harmless beyond a reasonable doubt” 

standard set forth in Chapman. 

Fry v. Pliler, 551 U.S. 112, 121–22 (2007)(citation omitted, emphasis added). In other 

words, while Chapman must be satisfied for a petitioner to obtain habeas relief, the 

Chapman analysis is subsumed by Brecht’s actual prejudice rule, and this court need not 

separately apply each test. See Richardson v. Griffin, 866 F.3d 836, 844–45 (7th Cir. 2017).

Under Brecht, habeas relief is to be granted if this court “has so much as a ‘grave 

doubt as to the harmlessness’” of a constitutional error. Jones, 635 F.3d at 1053 (quoting 

O’Neal v. McAninch, 513 U.S. 432, 439 (1995)). Factors to consider include “the 

importance of the witness’ testimony in the prosecution’s case, whether the testimony 
13

was cumulative, the presence or absence of evidence corroborating or contradicting the 

testimony of the witness on material points, the extent of cross-examination otherwise 

permitted, and of course, the overall strength of the prosecution’s case.” Id. (quoting 

Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). See also United States v. Adams, 628 F.3d 

407, 417 (7th Cir. 2010). This court, like the Court of Appeals of Indiana, presumes that 

the trial court’s finding that Macechko was unavailable and that her deposition 

testimony could therefore be admitted violates the Confrontation Clause for purposes 

of this analysis. Accordingly, this court turns to whether the presumed Sixth 

Amendment violation had a substantial and injurious effect on the jury’s verdict. 

Here, Macechko’s testimony was important not because she herself performed 

any tests that linked Williams to the crime scene, but because she handled much of the 

evidence collected at the scene and passed it on for DNA testing. Most of this evidence, 

however, did not link to Williams. She did, however, handle key samples from the front

doorknob that were ultimately linked to Williams. She collected a possible skin cell 

sample from the front doorknob that was ultimately found to contain Williams’s DNA, 

packaged it, and sent it on to DNA for testing. (Macechko Dep. at 16–18.) And, she 

tested possible blood samples collected by Lucas that were ultimately found to contain 

Williams’s DNA, determined that the samples contained blood, repackaged them, and

passed them on to DNA for testing. (Macechko Dep. at 34–38.) But, as to the samples 

that ultimately connected Williams to the crime scene, that is all she did.
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Williams takes issue with the Court of Appeals of Indiana’s statement that 

Macechko did not participate in the determination that the evidence should be subject 

to DNA testing. Here, Williams’s point is well-taken. Macechko testified that “if there’s 

body fluid staining, if there’s an indication or identification of a body fluid stain then 

the sample is packaged in a coin envelope for transfer to DNA.” (Macechko Dep. at 9.) 

But, if she does not find anything of serological value, the sample is repackaged, 

resealed, and returned to the evidence room, and no sample would be sent to DNA for 

further testing. (Id.) Williams’s argument has no traction, however, because what 

matters here is not that she was the one that decided to pass the evidence on for DNA 

testing but that she did in fact pass it on for DNA testing. 

Next, the court must consider what impact Macechko’s testimony had on the 

verdict. It is clear that this court must do more than ask whether the remaining evidence 

was legally sufficient to sustain a finding of guilt. See Jones, 635 F.3d at 1053. Any 

prejudicial effect of allowing the evidence to be admitted must be considered. Id. But 

here, the testimony was not inherently prejudicial – it merely aided in establishing the 

chain of custody for skin and blood samples that were ultimately linked to Williams. 

Macechko did not know if she had actually collected any skin cells or not when she 

swabbed the doorknob – she merely packaged the potential skin cells for DNA to 

assess. And, Macechko did not know whose blood was present in the samples that 

David Lucas collected – she only determined that blood was present. Thus, while her 

testimony was important to the extent that it aided in establishing the chain of custody 
15

of samples that ultimately linked Williams to the scene, it was not particularly 

important beyond that.

The more important question is whether the key testimony from Fishburn

linking Williams to the blood and skin samples would have been admitted in the 

absence of Macechko’s testimony. The Court of Appeals of Indiana determined that 

evidence of Williams’s DNA in a blood sample Lucas collected from the front doorknob

was some of the most critical evidence presented at trial, but that an adequate chain of 

custody could have been established even in the absence of Macechko’s testimony. This 

court agrees. Lucas collected samples from the front door doorknob, Macechko handled 

the samples and tested them to determine that they in fact blood contained blood before 

sending it on for DNA testing, which was performed by Fishburn. (States Exs. 86, 87, 96, 

97; Macechko’s Dep. at 34-38; Trial Tr. at 188-89, 785-88.) As the Court of Appeals of 

Indiana noted, in Indiana, chain of custody need not be perfect so long as the 

government demonstrates that the evidence remains in substantially the same 

condition. See Troxell v. State, 778 N.E.2d 811, 814 (Ind. 2002). A presumption of 

regularity applies when evidence is in police custody. Id. Furthermore, gaps in the chain 

of custody go to the weight of the evidence, not its admissibility. Id. The United States 

Constitution likewise does not mandate that every individual that handled evidence be 

present at trial to testify. See Malendez-Diaz v. Massachusetts, 557 U.S. 305, 335-36 

(2009)(“[W]e do not hold, and it is not the case, that anyone whose testimony may be 

relevant in establishing the chain of custody, authenticity of the sample, or accuracy of 
16

the testing device, must appear in person as part of the prosecution’s case.”)

Accordingly, evidence that the samples collected by Lucas and tested by Fishburn

contained Williams’s DNA would have been admissible without Macechko’s testimony. 

Furthermore, Macechko’s failure to testify would not have detracted significantly from 

the weight of this powerful evidence.

The skin sample is a different matter. It was collected by Macechko and neither 

Lucas nor Fishburn could have provided testimony about how the sample was 

collected. Therefore, without Macechko’s testimony, evidence that the skin sample 

collected by Macechko contained Williams’s DNA would not likely have been admitted. 

But, given that the blood sample would have been admitted without Macechko’s 

testimony, the admission of evidence linking DNA in the skin cells that Macechko

collected to Williams would not have had a substantial and injurious effect or influence 

on the jury’s verdict. The DNA evidence linking blood to Williams was relevant because 

it placed Williams at the scene. Fishburn’s testimony was that, in the absence of an 

identical twin, there was a one in one billion chance of the DNA found in the sample

collected from the inside doorknob4 belonging to someone other than Williams, and a 

one in four sextillion chance of the DNA found in the sample collected from the outside 

doorknob5 belonging to someone other than Williams. (Trial Transcript at 786–88.) The 

 

4 While Fishburn testified that this sample contained blood, she could not determine if the source 

of the blood was Sandra Bartenbach or Williams. It may have been a mix of DNA from one individual’s 

blood and the other individual’s skin cells. (Trial Tr. at 786.)

5 Fishburn testified that this sample contained Williams’ blood. (Trial Tr. at 787-88.)
17

DNA evidence linking skin cells to Williams merely corroborated the powerful and 

admissible evidence that Williams’s blood was found at the crime scene. 

When the evidence of Williams’s DNA found in the blood sample collected at the 

scene is considered with other evidence of guilt, it is hard to imagine how the lack of 

Macechko’s testimony could have had a substantial and injurious effect on the jury’s 

verdict. Williams and Emous offered varying accounts of their whereabouts on the 

night of Bartenbach’s murder—all inconsistent with cell phone records. Phone calls 

recorded at the jail are also suggestive of guilt. In one of these calls, in response to 

learning that the police wanted to interview Emous’ mother, Williams indicated that 

Emous needed to “lace mama up.” (State’s Exs. 198 and 198(a).) In another call, in 

response to Emous telling Williams that DNA could be left at a scene by sweating, 

Williams responds by saying “[n]ah I wasn’t, wasn’t none of that, ain’t none of that 

going on.” (State’s Exs. 195 and 195(a).) And later, after Williams was banned from 

speaking with Emous, there was evidence that Williams directed another inmate, 

Michael Webb, to call Emous and relay coded messages which Webb believed were 

designed to emphasize the need for Emous to keep her story the same. (Trial Tr. at 513–

33.) There were also varying explanations for why Williams’s DNA might be found at 

the scene: a piece of furniture fell on him when he was helping move it (State’s Exs. 195, 

195(a)), he put some tile down in the bathroom for the victim (State’s Exs. 196 and 

196(a)), and he was helping the victim bring in groceries just two days before her death 

when he dropped a case of water and his knee bled (Trial Tr. at 470–71, 482). These all 
18

point toward guilt. Not only was there plenty of other evidence to support a conviction, 

but—in light of the record as a whole—the presentation of Macechko’s testimony and 

the admission of duplicative testimony regarding Williams’s DNA being found in the 

skin sample that Macechko collected from the front door doorknob would not have had 

a substantial and injurious effect on the jury’s verdict. This court does not have any 

doubt as to the harmlessness of the error. 

Here, the Court of Appeals of Indiana’s determination that any error in 

admitting Macechko’s testimony was harmless was not only well within the possibility 

of disagreement between fair-minded jurists, but also correct. See Harrington, 562 U.S. at 

101; Woods, 135 S.Ct. at 1376. This court has no doubt that the trial court’s error, if any, 

did not have a substantial and injurious effect on the verdict. Therefore, Williams is not 

entitled to habeas relief on this ground.

V. CERTIFICATE OF APPEALABILITY

Pursuant to Section 2254 Habeas Corpus Rule 11, the court must grant or deny a 

certificate of appealability. To obtain a certificate of appealability under 28 U.S.C. 

§ 2253(c), the petitioner must make a substantial showing of the denial of a 

constitutional right by establishing “that reasonable jurists could debate whether (or, for 

that matter, agree that) the petition should have been resolved in a different manner or 

that the issues presented were adequate to deserve encouragement to proceed further.” 

Slack v. McDaniel, 529 U.S. 473, 484 (2000). For the reasons explained in this opinion, 
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there is no basis for encouraging Williams to proceed further. Thus, a certificate of 

appealability must be denied.

VI. CONCLUSION

For these reasons, the habeas petition (DE # 1) is DISMISSED and a certificate of 

appealability is DENIED.

SO ORDERED.

Date: March 18, 2019

s/James T. Moody 

JUDGE JAMES T. MOODY

UNITED STATES DISTRICT COURT