A new judicial ruling “may not be applied retroactively to a conviction that has become final,” and “may be applied only to cases that are pending on the announcement date.”
How later courts described this case
- A new judicial ruling “may not be applied retroactively to a conviction that has become final,” and “may be applied only to cases that are pending on the announcement date.”
Written by the judges who cited it.
The opinion
Leach, J.,
concurring in case No. 72-163 but dissenting-in case No. 72-33.
Involving as it did the establishment of a new rule of evidence by which prejudice is judicially presumed from the use of photographs from police files, I would apply such rule only to those trials which took place subsequent to the announcement of the decision of this court to this effect in State v. Breedlove, 26 Ohio St. 2d 178 , on June 23, 1971. *189 This same principle of prospective application based on the time of trial has been applied by the United States Supreme Court in Johnson v. New Jersey (1966), 384 U. S. 719 (with respect to its holdings in Escobedo v. Illinois [1964], 378 U. S. 478 , and Miranda v. Arizona [1966], 384 U. S. 436 , as to the admissibility of confessions); and in Desist v. United States (1969), 394 U. S. 244 (with respect to its holding in Katz v. United States [1967], 389 U. S. 347 , as to the admissibility of evidence obtained by electronic eavesdropping).
In addition to the reasons given by the majority for its affirmance of the judgment of conviction in case No. 72-163, with which I am in agreement, I would apply this same principle of prospective application therein.
Moreover, in case No. 72-163, I think it clear that any claimed violation of the principles enunciated in Breedlove was “harmless error beyond a reasonable doubt.” Chapman v. California (1967), 386 U. S. 18 ; Harrington v. California (1969), 395 U. S. 250 . The defendant herein took the stand and admitted sis prior convictions and, in essence, argued that he had freely admitted his guilt in all of the other cases but that in the case then being tried he was not guilty and was denying guilt. This testimony, a typical defense strategy, could only be employed by defendant taking the stand, which he chose to do. In addition, while admitting that he had confessed, he claimed that his confession was not true and that he had made the confession only as a part of a deal with his probation officer upon the basis that he would be returned for probation violation without additional charges being filed. Obviously this defense required affirmative testimony as to a prior conviction.
When all such evidence is considered, it becomes abundantly clear that the use of the “mug shots” in case No. 72-163 could not be considered to have been truly prejudicial in this case, in any event.
Schneider, and Herbert, JJ., concur in the foregoing opinion.