Petition — Simpson v. Ohio

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Supreme Court, U. &.

> mae 2 oe a

JAN 9 1976

Supreme Court of the United States

October Term, 1975

" No. 75-97 1 4

CHARLES SJMPSON,

Petitioner,

vs.

STATE OF OHIO,

Respondent.

— — —

PETITION FOR WRIT OF CERTIORARI

To the Ohio Court of Appeals for the Eighth Appellate

Judicial District of the State of Ohio

—— —— — —

—— J— — —

JAMEs R. WILL Is, Ese.

1212 Bond Court Building

1300 East Ninth Street

Cleveland, Ohio 44114

216/523-1100

Attorney for Petitioner

Joun T. CORRIGAN

Cuyahoga County Prosecutor

Criminal Courts Building

1560 East 21st Street

Cleveland, Ohio 44114

216/771-0660

Attorney for Respondent

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647

TABLE OF CONTENTS

e ee NE EO 1

Petition for Writ of Certiorari i 1

e SAL eS 1

J er — 2

r 2 ] 2

Constitutional and Statutory Provisions Involved 3

.. tices 8

r xx 9

B. The Trial nnn . 28

C. Motions Made During Trial * 32

r Ä 32

Arguments Relied On for Allowance of Writ 34

I. An affidavit for a search warrant which makes

no effort to show the source of an undisclosed

informant’s conclusions, or to demonstrate that

he is credible or his information otherwise re-

liable, cannot support the issuance of a search

warrant for the seizure of a motor vehicle as

EE SE ( 34

II. An intentional or recklessly untruthful mis-

representation will result in an invalidation of

a warrant, the same is true of an unintentional

misrepresentation of a material issue of fact 43

III. The right of confrontation and the hearsay

rule are both violated when a crucial witness is

allowed to relate as substantive evidence the

contents of conversations had with an undis-

closed informant, and with others—including

a Judge and the County Prosecutor ................ 52

VII.

A trial court cannot, consistent with the re-

quirements of due process, sanction the non-

disclosure of the identity of an alleged infor-

mant where it appears necessary (1) to avoid

the risk of false testimony, (2) to secure use-

ful testimony, or (3) it is essential to a fair de-

termination of a cause or issue 59

It is a violation of due process for the court

to resort to disjunctive language in charging

the jury where such language creates affir-

mative theories upon which a verdict of guilt

ö 70

A law which alters the rules of evidence so

as to permit an uccused to be convicted upon

less, or different, evidence than was required

when the charged crime supposedly was com-

mitted is invalid as ex post facto 75

It is a violation of due process to instruct the

jury that one can be convicted of committing

one offense upon proof he committed another

distinctly different offene 82

—— 2 te os 83

Appendices:

A. Journal Entry of Supreme Court of Ohio De-

Rn, Al

B. Journal Entry of Supreme Court of Ohio Dis-

r A2

C. Opinion and Journal Entry of Court of Appeals

e òůͥ ̃fTſ]hG!!! A3

D. Journal Entry of Court of Appeals Denying

„%%% — Ale

E. Journal Entry of Court of Common Pleass A20

F. Search Warrant for Volkswagen 422

G. Search Warrant for Cadillac A25

III

TABLE OF AUTHORITIES

Cases

Ackley v. United States, 200 F.2d 217. 72

Aguilar v. Texas, 378 U.S. 108 (1964) 35, 36, 38, 42, 43

Alderman v. United States, 394 U.S. 165 (1969) ............ 66

Brady v. Maryland, 373 U.S. 83 (1963) ...... 61

Branzburg v. Hayes, 408 U.S. 665 (1972) .................... 59

Calder v. Bull, 3 U.S. (3 Dall) 386 (1798) 78

Chambers v. Mississippi, 410 U.S. 284 (1973) 60

Coleman v. McGettrick, 2 Ohio St. 2d 177 (1965) 74

Crain v. United States, 162 U.S. 625 71

Douglass v. Alabama 380 U.S. 415 (1965) 54

Favre v. Henderson, 464 F.2d 359 (5th Cir.), cert. de-

kl, 57, 58

Giglio v. United States, 405 U.S. 150 (1972) ................... 61

In Re Winship, 397 U.S. 358 (19717 ———— 72

Jencks v. United States, 353 U.S. 657 (1957 62

Kitchen v. United States, 272 F.2d 757 (1959) ................ 71

Kring v. Missouri, 107 U.S. 221 (1883) 76

Leary v. United States, 395 US. 31 (1969) .................... 81

Nixon v. Sirica, 360 F. Supp. 1 (1973) 66, 67

Nixon v. Sirica, 487 F.2d 700 (1973) 67, 68, 69

North Carolina v. Wrenn * „94 S. Ct. 3°30

177 ˙ A A ˙ ˙²²p1 ̃—˙wV; 47

Parker v. Maxwell, 174 Ohio St. 471 (1963) 70

People v. Lewis, 20 III. App. 3d 161, 313 N. E. 2d 170

e, 65

People v. Riser, 47 Cal. 2d 566, 305 P.2d 1 (1956) o4

Plachy v. State, 91 Tex. Crim. R. 405, 239 S.W. 979

(ia ELAS SET 2 75

Pointer v. Texas, 380 U.S. 400 (1965) . . 54, 63

Price v. Georgia, 398 US. 323 (1970) 79

Roviaro v. United States, 353 U.S. 53 (1957)

— ꝓ ——̃ Ä 58, 59, 62, 65, 69

Scher v. United States, 305 U.S. 251 (1938) 59

Silverthorne Lumber Company v. United States, 251

„„ 39

Smith v. Illinois, 390 U.S. 129 (1968) eee 54, 55

Spinelli v. United States, 393 U.S. 410 (1969)

ß 35, 36, 38, 40, 42, 43

State v. Daniels, 169 Ohio St. 87 (19599 71

State v. Johnson, 12 Minn. 476 (1867) .. 75

State v. Thompson, 1 Ohio App. 2d 533 (1965) ............ 39

Steele v. United States, 267 U.S. 498 (1925) 45

Stromberg v. California, 283 U.S. 359 (1931) ........ 80, 81, 82

Thompson v. Missouri, 171 U.S. 380 (1898) 75

United States v. Belculfine, 508 F.2d 58 (1974 50, 51

United States v. Carmichael, 489 F.2d 983 (7th Cir.

6838 — ů¶ ana 46, 48, 50

United States v. Damitz, 495 F.2d 50 (1974) 48, 49, 50

United States v. Dunning, 425 F.2d 836 (1969) 41, 48, 49

United States v. Hurse, 453 F.2d 128 (1972) . 68

United States v. Jackson, 384 F.2d 825 (1967) . 68

United States v. Leichtfuss, 331 F. Supp. 723 (1971) 64

United States v. Marihart, 492 2d 897 (8th Cir. 1974)

—̃ — ³—ͤ — — ˙*ö⏑— LU tatiana 46, 48, 50

United States v. Paroutian, 299 F.2d 486 (1962) 39

United States v. Reynolds, 345 U.S. 1 (1953) 66, 67, 68

United States v. Thomas, 489 F.2d 664 (5th Cir. 1973)

. ͤ ett semen 46, 48, 50

United States v. Thompson, 422 F.2d 1104 (1970) .......... 72

Washington v. Texas, 388 U.S. 14 (1967) 60

Whitely v. Warden, 401 U.S. 560 (197999 40

Wilborg v. United States, 163 U.S. 632 1 —— 72

Will v. United States, 389 U.S. 990 64

Texts

51 Federal Rules Decisions 37ù „ 59

Forkosh, The Constitutional Right to Challenge the

Contents of Affidavits in Warrants Issued Under the

Fourth Amendment, 34 Onto Sr. L.J. 297 (1973) ... 47

Grano, A Dilemma for Defense Counsel: Spinelli-

Harris, Search Warrants and the Possibility of

Police Perjury, 1971 U. ILL. L.R. 40) 40

Kipperman, Inaccurate Search Warrant Affidavits as a

Ground for Suppressing Evidence, 84 Harv. L. Rev.

e 47

r 2 Te 70

Constitutions

United States Constitution:

ä 3, 78

CE 4

r ̃Ä U 4

r ee 4

Statutes

Rule 29, Ohio Rules of Criminal Procedure 4

Rule 41, Ohio Rules of Criminal Procedure 5, 12, 39, 40

Rule 41(C), Ohio Rules of Criminal Procedure 41

Ohio Revised Code, Section 2945.33333333;lm 6, 83

Ohio Revised Code, Section 4545.0o77ʒ 8, 33

Ohio Revised Code, Section 4549.04 6, 7, 76, 83

Ohio Revised Code, Section 4549.04 (EL)) 71

Ohio Revised Code, Section 4549.07 7ʒ 77 8, 83

Supreme Court of the United States

Octeber Term, 1975

—

STATE OF OHIO,

Respondent.

PETITION FOR WRIT OF CERTIORARI

To the Ohio Court of Appeals for the Eighth Appellate

Judicial District of the State of Ohio

To the Honorable, the Chief Justice and Associate

Justices of the Supreme Court of the

United States:

The petitioner, Charles Simpson, prays that a writ

of certiorari issue to review the judgment of the Ohio

Court of Appeals for Cuyahoga County, which judgment

became final on October 16, 1975, when the Supreme Court

of Ohio denied further appellate review.

OPINIONS BELOW

The judgment entries of the Supreme Court of Ohio

denying further appellate review are attached hereto

as Appendixes “A” and “B”, infra, at pp. Al and A2.

The decision of the Ohio Court of Appeals for Cuyahoga

County, the judgment to which this petition is directed,

was not formally reported. The Journal Entry of that

Court is attached hereto as Appendix C“ infra, at page

A3. The entry of the Court of Common Pleas (the trial

court) is Appendix E“, infra, at page A20.

JURISDICTION

The judgment of the Supreme Court of Ohio was

entered on October 16, 1975. The jurisdiction of this

Court is invoked under 28 U.S.C. §1257(3), on the basis

that rights, privileges, and immunities under the United

States Constitution are contended to have been violated.

QUESTIONS INVOLVED

(1) Can an affidavit for a search warrant which

makes no effort to show the source of an undisclosed

informant’s conclusions, or to demonstrate that he is cred-

ible or his information otherwise reliable, support the issu-

ance of a search warrant for the seizure of a motor vehicle

as stolen property?

(2) Can an intentional or recklessly untruthful mis-

representation of a material fact, or even an umintentional

misrepresentation of such a fact in an affidavit be disre-

garded if the affidavit is otherwise sufficient?

(3) Is it a violation of the right of confrontation

and the hearsay rule where a crucial witness is allowed

to relate as substantive evidence the contents of conver-

sations had with an undisclosed informant, and with

others—including a Judge and the County Prosecutor?

(4) Can a trial court, consistent with the require-

ments of due process, sanction the nondisclosure of the

identity of an alleged informant where it appears neces-

sary (1) to avoid the risk of false testimony, (2) to secure

useful testimony, or (3) it is essential to a fair determma-

tion of a cause or issue?

(5) Is it a violation of due process to charge a jury

by means of disjunctive language which creates alternative

theories upon which a verdict of guilty could be based?

(6) Is a law which alters the rules of evidence so

as to permit an accused to be convicted upon less or

different evidence than was required when the charged

crime supposedly was committed invalid as ex post facto?

(7) Is it a violation of due process to instruct the

jury that one can be convicted of committing one offense

upon proof he committed another distinctly different of-

fense?

CONSTITUTIONAL AND STATUTORY .

PROVISIONS INVOLVED

Constitution of the United States, Article I, Section 10,

Clause 1:

“No State shall * * * pass any Bill of Attainder,

ex post facto Law, or Law impairing the Obligation of

Contracts, or grant any Title of Nobility.”

Constitution of the United States, Amendment IV:

“The right of the people to be secure 1 their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.”

Constitution of the United States, Amendment V:

No person shall be held to answer for a capital or

otherwise infamous crime, unless on a presentment or in-

dictmment of a grand jury, except in cases arising in the

land or naval forces, or in the militia, when in actual

service in time of war or public danger; nor shall any

person be subject for the same offense to be twice put

in jeopardy of life or limb; nor shall be compelled in

any criminal case to be a witness against himself, nor

be deprived of life, liberty, or property, without due process

of law; nor shall private property be taken for public

use without just compensation.”

Constitution of the United States, Amendment XIV:

“All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws.”

‘Rule 29, Ohio Rules of Criminal Procedure:

“The court on motion of a defendant or on its own

motion, after the evidence on either side is closed, shall

order the entry of a judgment of acquittal of one or more

offenses charged in the indictment, information, or com-

plaint, if the evidence is insufficient to sustain a conviction

of such offense or offenses. The court may not reserve

ruling on a motion for judgment of acquittal made at

the close of the state’s case.”

Rule 41, Ohio Rules of Criminal Procedure:

“A search warrant authorized by this rule may be

issued by a judge of a court of record to search and

seize property located within the court’s territorial juris-

diction, upon the request of a prosecuting attorney or

a law enforcement officer.

A warrant may be issued under this rule to search

for and seize any: (1) evidence of the commission of

a criminal offense; or (2) contraband, the fruits of crime,

or things otherwise criminally possessed; or (3) weapons

or other things by means of which a crime has been

committed or reasonably appears about to be committed.

A warrant shall issue under this rule only on an

affidavit or affidavits sworn to before a judge of a court

of record and establishing the grounds for issuing the

warrant. The affidavit shall name or describe the per-

son to be searched or particularly describe the place to

be searched, name or describe the property to be searched

for and seized, state substantially the offense in relation

thereto, and state the factual basis for the affiant’s belief

that such property is there located. If the judge is satis-

fied that probable cause for the search exists, he shall

issue a warrant identifying the property and naming or

describing the person or place to be searched. The find-

ing of probable cause may be based upon hearsay in whole

or in part, provided there is a substantial basis for believ-

ing the source of the hearsay to be credible and for be-

lieving that there is a factual basis for the information

furnished. Before ruling on a request for a warrant, the

judge may require the affiant to appear personally, and

may examine under oath the affiant and any witnesses

he may produce. Such testimony shall be admissible at

a hearing on a motion to suppress if taken down by a

court reporter or recording equipment, transcribed and

made part of the affidavit. The warrant shall be directed

to a law enforcement officer. It shall command the officer

to search, within three days, the person or place named

for the property specified ... .”

Ohio Revised Code, Section 2945.83:

“No motion for a new trial shall be granted or verdict

set aside, nor shall any judgment of conviction be reversed

in any court because of:

(A) An inaccuracy or imperfection in the indictment,

information, or warrant, provided that the charge is suffi-

cient to fairly and reasonably inform the accused of the

nature and cause of the accusation against him;

(B) A variance between the allegations and the proof

thereof unless the accused is misled or prejudiced thereby;

fered against or for the accused unless it affirmatively

appears on the record that the accused was or may have

been prejudiced thereby;

(D) A misdirection of the jury unless the accused

was or may have been prejudiced thereby;

(E) Any other cause unless it appears affirmatively

from the record that the accused was prejudiced thereby

or was prevented from having a fair trial.”

Ohio Revised Code, Section 4549.04 [Repealed 3/20/72]

“No person shall commit any of the following acts:

(A) Steal any motor vehicle;

(B) Purposely take, drive, or operate any motor ve-

hicle without the consent of its owner;

stolen, knowing it to have been stolen;

(D) Knowingly conceal a person who has stolen any

motor vehicle.”

Ohio Revised Code, Section 4549.04 [Effective 3/20/72]

„(A) No person shall steal any motor vehicle.

(B) No person shall purposely take, operate, or keep

any motor vehicle without the consent of its owner, and

either remove it from this state, or keep possession of

it for more than forty-eight hours.

a motor vehicle or operate or keep a motor vehicle which

has been hired. It is prima-facie evidence of an intent

to defraud if the offender does any of the following:

(1) Hires the motor vehicle by means of any false

representation or by means of the unlawful use of a credit

card;

(2) Hires the motor vehicle knowing he is without

sufficient means to pay the hire;

(3) Absconds without paying the hire for the motor

vehicle;

(4) Knowingly fails to pay the hire for the motor

vehicle on its return, in the absence of a prior agreement

for extended credit, without reasonable excuse for such

failure;

(5) Knowingly fails to return the motor vehicle as

required by the contract of hire, without reasonable excuse

for such failure.

(D) No person shall purposely take, operate, or keep

any motor vehicle without the consent of its owner.

(E) No person shall receive, buy, operate, conceal,

or dispose of a motor vehicle that was obtained by means

of an auto theft offense, knowing or having reasonable

cause to believe it to have been so obtained.”

Ohio Revised Code, Section 4549.07

“No person shall knowingly buy, sell, receive, dispose

of, conceal, or have in his possession any motor vehicle,

as defined in section 4501.01 of the Revised Code, from

which the manufacturer’s serial number or any other dis-

tinguishing number or identification mark has been re-

moved, defaced, covered, or destroyed, for the purpose

of concealing or destroying the identity of the said motor

vehicle.”

STATEMENT OF THE CASE’

Charles Simpson, the petitioner herein, variously re-

ferred to throughout this Petition as “Simpson”, “the ac-

cused”, or the “petitioner”, was found “guilty as charged

by the Judge” of two (2) counts involving the alleged

concealment, operation and purchase of various “stolen”

cars. He was also convicted on a charge that he altered

the numbers on a motor vehicle. The appeal to the Court

of Appeals for Cuyahoga County was from the judgment

1. Whenever reference is made in this Petition to the Tran-

antes of Teens „

prefix ‘ .

— — —

entered on these verdicts, as well as the trial court’s failure

to grant either a judgment of acquittal or a new trial.

That Court affirmed the judgment of the trial court and

also denied petitioner’s Motion for Rehearing (See Appen-

dix D“, infra, p. Al9). The Supreme Court of Ohio

denied further appellate review. By this Petition, it is

contended that this cause involves serious and substantial

constitutional questions.

Because of the involved nature of this case, and the

vastness of this Record, this Petition will develop the facts

in several divisions. These will include those labeled Pre-

trial Motions, The Trial, Motions Made During Trial, and

The Instructions.

A. Pre-trial Motions

The charges against Simpson and his wife were con-

veniently spread over two cases numbered 6859 and 6860.

The Court consolidated these for trial (R 213) after grant-

ing a separate trial for Mrs. Simpson (R 215). The Court

first considered the Motion to Suppress filed in these cases.

The contentions made therein were te the effect that

the original warrant, for the Volkswagen (Appendix F“

infra, p. A22), was issued without probable cause, and

that the subsequent information acquired incident to this

illegal search was then used as the prime ingredient in

the affidavit utilized as the basis for the subsequent war-

rant for the Cadillac (Appendix G“, infra, p. A25).

The evidence bearing on the essential issues included

the testimony of William McComb, the affiant. Distilled,

his evidence was that he was connected with the Automo-

bile Theft Unit of the Cleveland Police Department, and

that on October 10, 1972, he met with an informant, “who

related that he was aware of a theft ring which was

operating in . Cleveland. ...” (R 12 [Emphasis added].)

Supposedly this informant told him the names of the people

involved and that they, “were proficient in the altering

of vehicle identification numbers” (R 12).

Of specific importance here, as will be developed later,

McComb stated:

“He [the informer] told us that Mr. Simpson

was in possession of a 1972 Cadillac Eldorado, that

was a stolen vehicle.

He told us that the vehicle had been titled to

Mr. Simpson by way of a salvage title obtained frorn

a place called Moyer’s Auto Wrecking in Crestline,

Ohio. He told us that the title that was for this

car was for a 71 model, although the car ac-

tually was a 72. And he told us that the people

that had done the work on the car, the altering the

numbers of that, had altered the appearance of the

car to make it to appear to be a 71 in order to

match the title.

He further said that Mr. Simpson was not in pos-

session of a Porsche automobile.. He said that this

Porsche automobile had been stolen from Euclid, Ohio;

that when it was stolen it was a Porsche model 911-

T, like in Tom, and he said the title of this car had

been obtained from Moyer’s Auto Wrecking for

a model 911-E.

He said the identifying marks on this car had

been altered to make it appear to be a 911-E to cor-

respond with the title.” (R 12-13).

McComb added further that this informant also told

him during this October 10, 1972, conversation that:

“. . . Mr. Simpson was in possession of a Volkswagen

automobile which was stolen. He described it as a

yellow Volkswagen with black interior. He told us

that this car had been stolen on Euclid Avenue in

Cleveland, Ohio, and again that the title for this car

that was in Mr. Simpson’s name or possession, it was

actually titled to Nancy Simpson, had been obtained

from Moyer’s Auto Wrecking in Crestline... . [and

that] the informer related that Mr. Simpson had been

in possession of a number of other cars, in particular

he mentioned a 69 Corvette, which he believed that

Mr. Simpson had resold. He related that Mr. Simpson

at one time owned a Camaro automobile which was

a stolen automobile. He [also] related that Mr. Simp-

son’s mother was in possession of a Chevrolet sta-

tionwagon, but basically, that is the story that he

reported to us.” (R 14-15.)

Based on this information, and obvious misinformation,

McComb says he made various checks with certain insur-

ance companies, title clerks, and individuals. He also

checked with a Charles Allspaugh, Agent in Charge of

the National Auto Theft Bureau in Chicago, Illinois (R

18).

Armed with these “facts” (if that is what they were),

he consulted with our County Prosecutor and then with

Judge Matia (R 54). According to McComb, they gave

a lot of information to the Judge. At least, we have

his testimony this occurred. And, we also have his unveri-

fied statement that he was sworn in before talking to

Judge Matia. Be all that as it may, and we do seriously

doubt this in fact occurred, the facts show that no court

reporter was present to record this asserted event, nor

was there any other type of recording device on hand

to verify this occurred as is required by Rule 41(C), Ohio

Rules of Criminal Procedure R 55-56).

Based on this specific disclosure, counsel moved the

Court to “exclude all of the testimony from its consider-

ation insofar as ruling on the motion . . . [which related]

to conversations that he [McComb] had with Judge Matia,

in which he . . . [alleged] a considerable amount of in-

formation, which obviously . . . [was] not on the affidavits”

(R 58).

Although the Court reserved its ruling on this Motion,

it is significant that the Court later decided that Rule

41, Ohio Rules of Criminal Procedure, “does not apply

to . . search warrants .. . obtained in October, 1972,”

and consequently, “the motion to exclude the testimony

relative to the conversations with the magistrate is over-

ruled” (R 206-207). The unavoidable effect of this is

that the Court thus made it clear it was giving consider-

able weight to these asserted conversations. This, of

course, made the credibility of the affiant a factor of

increased proportions. Here, the critical ruling of the trial

judge was that:

“The facts in this case as adduced from the witness

stand was that the detective, McComb, had discussions

with the County Prosecutor and the original affidavit

and search warrant was drafted and that they both

proceeded to see Judge Matia, who was the issuing

magistrate.

The Judge placed the detective under oath. There

was searching inquiry as to the matter and the Judge

found, as a matter of fact, probable cause existed.

The second search warrant was obtained later that

day and the same basic information was recited to

them, that is the whole story, and that had been made

available to Judge Matia, in addition to the affidavit

and the search warrant for the Cadillac was before

him. He now had the additional information that

the informant was reliable and on both occasions the

Judge found that probable cause existed.” (R 208-

209.)

Significant here, the cross examination of the affiant

shows the flat admission that his “affidavit does not set

forth any of the underlying circumstances from which .. .

[his] informant concluded that the Cadillac was stolen“

(R 60).

Additional testimony on this reliability feature shows

some almost incredible responses. Here, reference is being

made to the affiant’s testimonial analysis of various seg-

ments of his affidavit:

Q. The affiant says this informant proved reliable

by a subsequent check of records of the Clerk’s office,

which records revealed that one Nancy L. Simpson,

the wife of Charles A. Simpson existed as the owner

of a two-door sedan, 1970 Volkswagen, purchased Sep-

tember 14th from Moyer’s Used Cars. Right? A.

Right.

Q. Now, you knew that you had to not only

set forth im your affidavit some of the underlying

basis for the—you had to set forth some of the rea-

sons which led the informant to conclude the car was

stolen. You knew you also had to set forth in your

affidavit some of the underlying reasons for which

you concluded that the informant was reliable, you

knew that, didn’t you? A. Right.

Q. So that the only thing that is set forth in

your affidavit to bolster the reliability of this informa-

tion, is your statement that he proved to be reliable

because you checked the records and found out that

there was a Volkswagen purchased from Moyer’s by

Nancy Simpson on September the 14th, isn’t that

right? A. That is not right.

Q. Well— A. You left out about a half of the

page of the affidavit, by saying that.

Q. What did I leave out? A. Well, the affidavit

goes on to say that further investigation was conducted

and that it reveals a number of other things. It says,

‘All this investigation dove-tailed with what the in-

formant said.” ;

Q. That is not what you said in your affidavit?

A. If yours is the same as mine, it is.

Q. That appears to be the same, doesn’t it? A.

Yes.

Q. It says, right here, ‘The affiant says that

this informant proved reliable by a subsequent check

of the records of the Clerk’s office, which revealed

that Nancy Simpson has a Volkswagen that was pur-

chased on September the 14th from Moyer’s.’ That

is what you say, isn’t that right? A. Yes.

Q. That is what I thought you said. Now, you

also told us that this informant had told you that

Simpson purchased the Cadillac from Moyer’s? A.

That’s right.

Q. But you checked on that and found out that

that was not true, is that right? A. Yes, I did.

Q. But you didn’t put that in the affidavit? A.

We put in the affidavit what we did find out.

2. This reference in the affidavit, of course, to even a pass-

ing student of this facet of the law, simply has to be regarded as

the affiant’s conclusion and as such enti to no weight.

Q. But in the affidavit that relates to the Cadillac

seizure, you put in this affidavit, didn’t you, that the

informant had told you that Simpson had purchased

a car on February the 10th from Pearson Motor Sales,

didn’t you? A. That the informant said that, no, that

is not what it says. It says that the information from

the informant, that the 71 Eldorado, black Cadillac

was driven and titled to Charles Simpson, a stolen

automobile, is what it says.

Q. But why didn’t you put in there the infor-

mant had told you that the 1971 Eldorado Cadillac

convertible had been purchased from Moyer’s and you

had checked that and it didn’t come from Moyer’s,

why didn’t you put that in there? A. What purpose

would that have served?

Q. It would have shown that the informant

wasn’t reliable. A. I don’t believe so

Q. All right. If the informant tells you that the

car came from one city and gives you the name of a

dealer there and you find out it came from a differ-

ent city and county and from a different dealer, are

you telling the Court that proves that informant is

reliable? A. Informant—

Q. Does that prove he is reliable, Mr. McComb?

A. It doesn’t prove that he is reliable.

Q. It tends to prove that he is not reliable, doesn’t

it? A. It might be construed that way.

Q. But you were not interested in showing that

he was not reliable, you were interested in showing

that he was reliable so it was for that reason that you

didn’t put it in the affidavit? A. Quite naturally.

Q. Right. You were interested in deceiving the

Court. A. Not at all. That is why we outlined other

information in the affidavit.

Q. But you concealed proof that the informant

was unreliable, didn’t you? A. No, I did not.

Q. The informant also told you that Mr. Simp-

son’s mother was driving a stolen car? You docu-

mented that for us in your testimony, didn’t you?

A. No. I don’t believe that I said that at all.

. Are you positive of that? A. My under-

standing from—

Q. Not your understanding. I am talking about

what you testified to. A. What I testified to, the

informant said that his mother was driving a Chevro-

let stationwagon—

Q. That was stolen? A. I don't think I said it

was stolen. I certainly didn’t intend to, if I did.

Q. What did you say? A. Let’s ask the court

reporter.

Q. I'm asking you. A. I outlined what the in-

formant said and one of the things he said, Mr. Simp-

son’s mother has a Chevy stationwagon.

Q. Does that prove him to be reliable if his

mother has a Chevrolet stationwagon? A. Yes.

Q. If the person gives you something that is com-

mon knowledge that is proof that he is reliable? A.

Common knowledge to who?

Q. Let me ask you this: Isn't it a fact, Mr. Me-

Comb,—do you deny—you are under oath—that Ty-

rone Battle told you in October, 1972, that Simpson

was driving a stolen car, Cadillac, that his wife was

driving a stolen Volkswagen, that his mother was

driving a stolen—what kind of a car was that? Chev-

rolet.

MR. LIPOLD: Just driving a stationwagon.

Q. Driving a stolen Chevrolet stationwagon that

was titled to her—

MR. LIPOLD: Objection.

ein

——

— —

—

Q. Do you deny that Battle was not the one that

told you this? A. Yes, I deny that.

Q. Affirmatively? (R 61-66 [Emphasis added].

The latter portion of the above quoted testimony is

significant because while the affiant denied his previous

testimony had been that the informant told him Simpson’s

mother was driving a stolen Chevy stationwagon, the facts

show this specific remark was in the written statement

the affiant indicated was a summary of the information

given him (R 114).

Also relevant at this juncture is testimony by this

witness that Tyrone Battle, the person who testified dur-

ing the trial that he stole the Cadillac in question, was

not his informant (in fact he affirmatively denied that

Battle was his informant [R 66]), he could only testify

in response to the question how did the informant know

the Cadillac was stolen by stating, “I cannot disclose the

informant’s name or how we obtained this knowledge

without disclosing his name, because the informant fears

for his safety” (R 68).

Then, too, the affidavit stated the Cadillac had been

purchased from a Pearson Motor Sales and that it had

originally been “a metallic bronze color” (R 68). Fur-

ther, that the car Simpson was driving appeared to be an

original black paint job (R 68). However, the affiant ad-

mitted that they only talked to Pearson to determine the

kind of car he had sold Simpson after the warrant had

been issued (R 74), and that he did not determine, prior

to the issuance of the warrant, from Pearson the condi-

tion the car was in when it was sold to Simpson (R 81).

He did not know whether what had been sold was “a junk

heap” or a “repaired car” (R 82).

With reference to the warrant for the seizure of the

Volkswagen (as had been done with the Cadillac), this

officer was asked to show where it appeared, in his affida-

vit, the source of the informant’s knowledge that the car

was stolen (R 98). Here, again, he admitted it was not

set forth in the affidavit. Also, he did not check, accord-

ing to this testimony, to see if the car Mr. Simpson

was driving was a stolen car. He admitted that if Battle

had told him her car was stolen and it in fact was not

this would affect his credibility (R 113). But, of course,

McComb had to make this admission, since he says it

was afterwards determined her car had in fact been pur-

chased legitimately (R 113).

This then brings us to perhaps the most crucial aspects

of our contention with reference to (1) the affiant’s cred-

ibility (essential aspects of which were perjurious); (2)

the various invalid arguments made by the prosecutor;

and (3) certain indefensible rulings made by the Court.

First, the Record shows McComb also credited his

informant with having told him Simpson’s wife was driv-

ing a car that had been stolen in Cleveland in the early

part of 1971 (R 108), that he established Simpson’s wife

was driving a Volkswagen that had been purchased from

Moyer’s, and he learned from Shirley Patton the condition

of the car when she told it to Moyer’s. Further, that

the National Bureau told him the only Volkswagen stolen

in Cleveland that had not been recovered was yellow with

a black interior and this made his informer reliable (R

108-109).

With reference to the Cadillac (for which the war-

rant was issued), the informant told McComb that Simpson

was driving a stolen Cadillac (the source of the informant’s

conclusion was unstated), which had been purchased from

Moyer’s. He then traced this car back to its origination

and learned it was originally sold as “bronze” and the

one Simpson had was black, which he concluded was an

original paint job (R 110).

Also of significance here is the fact that the affiant

did not relate either in his affidavit or in his invisible

testimony to Judge Matia that the informant was wrong

in his statement that the car had been purchased from

Moyer’s (R 110). And he did not further check, at least

this is what he said, to learn Simpson’s mother’s car had

been purchased from Luby Chevrolet (R 113).

Any question as to whether these omissions were will-

ful, as we contend, is resolved by the segment of the

Record quoted above (—that is, R 61-66).

With the above salient facets of McComb’s testimony

in mind, he was then asked to identify a written document

(Motion Exhibits C-1 and C-2). His testimony was that

it was “a typewritten summary of the information that

was given to... [him] prior to the time . [they]

obtained the search warrants” (R 114). He denied it was

given to him by Battle (ibid.). In any event, this “written

summary” stated:

“Battle said that he was familiar with an auto theft

ring that was operating in Cleveland, Ohio, and fur-

nished the following information in this regard: The

operation of one Sam, a male Negro, age 26, who

has a garage in the immediate vicinity of 110th Street

and Superior in Cleveland, in which Sam alters the

confidential numbers on stolen vehicles.

Another individual in Cleveland who has also pur-

chased a wrecking yard in the same area where Sam

works on his cars, is one Kaiser Houston. Kaiser

usually works on trucks and Porsches, alters the num-

bers, and sells them

* * * * *

Both Sam and Kaiser have worked out methods

for obtaining papers for the vehicles, which they resell

or upon which they change the numbers. Kaiser gets

the majority of his cars from Pennsylvania. Sam gets

most of his cars from Detroit. Sam has previously

or maybe currently been employed by Fisher Body

plant, located on Coit Road, Cleveland. Sam is an

excellent mechanic in changing and altering numbers

on vehicles, as the police department has examined

a number of vehicles after Sam has worked on them,

and have been unable to identify them as stolen cars.

The numbering stamps that Sam uses to put a serial

number on a vehicle are not the same types of num-

bers that are put on at the factory, but it would

take an expert from the factory to determine the dif-

ferences.

As an example some of the vehicles that Sam

has worked on have been purchased by the City pros-

ecutor, Charles Simpson, he is believed to have the

following stolen vehicles in his possession, upon which

the numbers have been altered: -

The 1972 black Cadillac, titled in 1971. Originally,

this vehicle came from Detroit, but was stolen from

the Somerset Inn, located on Shaker Boulevard. The

car was a rental car from Detroit. The words E-

dorado, which are on the front of the 1972 Cadillacs

was removed and the holes were filled in and then

spot painted. Kaiser had the vehicle first, having

obtained it from ‘Shorty’ [Moyer’s] or ‘Crestline’.

A 1971 or 1972 Porsche which Simpson keeps at

his house was repainted a burnt orange color. This

vehicle is titled possibly as a 1971. Sam did the work

on it and turned it into a Model 911-E, however, when

it was stolen, it was a 911-T. It was stolen from

some apartments on Euclid Boulevard in the suburbs.

A 1970 Volkswagen sedan* which Simpson’s

wife drives, which usually sits outside of Simpson’s

house. It was stolen by one Campbell, who gave

it to Kaiser, who sold it to Charlie Simpson. Simp-

son’s mother drives a 1969 Chevrolet station wagon,

which is also stolen [cf. R 65-66], and which was

worked on by Sam. This vehicle is kept in some

garages in the rear door to Simpson’s home, which

Simpson rents from his neighbors near 110th and Su-

perior. It is actually between 107th and 110th and

Superior. To enter the garage from the rear, one

must take the alley off of 110th Street. He originally

had a garage on 110th Street near Superior which

had a sign on the garage, which was possibly Color

Specialities.

Simpson also has a 1970 or 1971 Corvette, which

vehicle was stolen in Cleveland after it had been

brought there by some people from Canada. There

are no papers on the vehicle, as it is used to race

at Thompson Raceway, Thompson, Ohio, and the 1972

Dragway, Norwalk, Ohio.

Kaiser moves his stolen property fast. His lot

is at 130th near Surplus City. It is the lot across

the street from the Town Gas Service Station, just

3. McComb says he told Judge Matia that his informant

told him this car was stolen on Euclid Avenue (R 14). To the

extent then this may have influenced the issuance of the warrant,

it must be so credited.

over the bridge, going east. Kaiser has a flat bed

truck which was originally a pick-up truck. He simply

cut the pick-up bed off and put on a flat bed. One

time Kaiser sold his brother a stolen car, and his

brother was arrested for it. Kaiser had to return

the money to his brother.

Sam, in working on the vehicles, has a heavy

duty hoist where he lifts the bodies off the frames.

Sam does the work on the cars by himself, and will

not allo anyone in the garage when he is working

on a car. Sam has the reputation of being very cau-

tious, and has not been arrested in Cleveland. Sam

refused to do any cars for several months after a

car ring was broken up that operated at 1llth and

Superior. This place was where the police found about

500 license plates in barrels, which belonged to vehicles

that had been worked on.

When Sam works on a car he changes the trans-

mission numbers, the window numbers and the en-

gine numbers along with the visible numbers.

Attorney Josselson is Charlie Simpson’s attorney.

Josselson has a 1971 or 1972 Grandville, white top,

maroon body, which came from somewhere in Michi-

gan, and is reportedly stolen. a —

Battle said that he was only allowed to be present

near Sam’s garage on one occasion, when Sam was

actually working on a vehicle, which he believed was

a white Cadillac.” (R 114-119 [Emphasis added]).

Thus, the affiant’s positive admission that this docu-

ment was a summary of the information supposedly given

him prior to the issuance of the warrants (R 114), a posi-

tion reaffirmed by him during his re-cross examination

(R 127-128), is most significant. Also significant is Mc-

Comb’s categorical testimony (although it was apparent

Battle was being quoted as having made the statements

therein) that he got the document from another informant

who could have been a police officer (R 128). As to

this, there is his further evidence that if his informant—

that is, the one that gave him the document—was a police

officer then when he said that person was reliable he

was talking about a fellow officer (R 128).

Returning, then, to the stated basis for the Court’s

ruling denying our Motion to Suppress, by the Court’s

own reckoning, he regarded as a factor on the question

of the informer’s credibility and the reliability of his in-

formation, “the officer’s personal knowledge of the in-

former.” (R 210 [Emphasis added].) Stated another way,

he found that the policeman-informaat who gave McComb

the obviously secondhand information contained in the

‘summary was reliable.

The Court also stated he regarded as significant the

fact that the affiant worked for the Auto Theft Unit and

was able to make an informed assessment. Further, that

the affiant’s personal belief as to the truthfulness of the

informant’s information was relevant. More simply put,

McComb believed what a fellow police officer told him,

because obviously this officer would not have told him

(McComb) if he (the informant-officer) did not believe

it to have been the truth.

Then the Court really taxes our credulity by adding

that the informant’s information was fresh and had been

personally corroborated (ibid.). As to the freshness point,

there is no way the Court could have possibly determined

when Battle, or anyone else, made these statements to

the informant. Hence, to conclude he had done so on

October 10, the day the affiant says he talked to his in-

formant, is to say the record supports this conclusion be-

cause the Judge says so.

This same assailment applies to the Court’s conclusion

that the informant had been found reliable in his recent

information, and to the inaccurate statement that the of-

ficer personally corroborated “the informant’s informa-

tion.” (ibid.). :

As to the corroboration point, the Record is clear. It

is simply not a fact that the officer corroborated “the in-

formant’s information.” This is so because some of the

informant’s so-called information was shown to be false.

The officer even conceded (although we contend he lied

as to Simpson’s mother’s car) he did not check certain

crucial segments of the information supposedly given him.

(As an aside one must wonder why the Court would gen-

eralize on a point as crucial as this. While we concede the

officer’s testimony could support a statement to the effect

that he corroborated some, rather than all, of the informa-

tion. supposedly given him, the distinction between these

two views is rather substantial.)

This leaves the “freshness of the [alleged] informant’s

information” a factor (ibid.). Here again, the fact that the

Court was reasoning on an ad hoc basis becomes most clear.

For surely it has to be the Court was trying to justify the

conclusion he wanted to reach to even mention this point.

This idea is especially compelling when one realizes

that even if the informant were a person other than Tyrone

Battle, it was apparent the “informant” was reporting what

Battle told him. Viewed in this sense, any determination

as to the “freshness” of the information has to turn not on

the date information was given to the affiant, but rather

on the date the information was given to the informer.

The final point urged by the Court, in denying the mo-

tion, was the fact that the reputation of the suspect can

be regarded as a factor (ibid.), which the Court coupled

with the suggestion such evidence was in this record.

Since there was no evidence bearing on the petitioner's

reputation presented either to the Court, to the issuing

magistrate, or stated in affidavits, one can only hope the

Court did not expose a predilection on its part to ratify the

actions of this officer regardless of how gross.

Other evidence considered by the Court on the motion

included that rendered by Detective Thomas Gaul. His

testimony was that he had seen Simpson, who was an

Assistant Police Prosecutor, driving the Cadillac and had

seen it several times parked around the police station (R

132). He saw nothing unusual about the paint job done

on the car. In short, it was his opinion the car had not

been repainted, although on cross examination he admitted

he was not an expert (R 136).

It was then, and is now our contention that the origi-

nal Motion to Suppress should have been granted on the

basis of the factual patterns . the Record at the close of

the evidence heard directly on the motion. However, even

assuming arguendo the Court’s original rulings were cor-

rect, given certain crucial testimony at the trial, the Court’s

failure to grant this motion when it was renewed both at

the close of the State’s case (R 2261), and at the close of

all the evidence (R 2656) is a further significant factor in

this appeal.

The additional relevant evidence to which reference

is being made involves the testimony by Tyrone Battle and

McComb. Here, the Record is most clear. Battle denied

that he “ever furnished any information . . before No-

vember of 1972, to the effect that. . [he was] familiar

with a vehicle theft ring operating in Cleveland” (R 1187).

It is, of course, a fact of no mean significance that Battle

was in California from March or April Ist of 1972, until

November, 1972 (R 752-753). The information supposedly

given by the informant was on October 10, 1972 (R12). In

line with this, the Record shows further Battle’s specific

denial that he discussed any of the cars particularized in

the summary of the information supposedly supplied by

the informant. These were, “a Corvette, a Volkswagen,

and a Cadillac.” Nor did he discuss “a Porsche, or a sta-

tion wagon, Chevy station wagon” (R 1244).

More specifically, Battle’s unequivocal testimony was

as follows:

Q. They didn’t discuss none of those cars with

you? A. No.

Q. You never discussed any of those cars with

anybody. A. Not in California.

Q. Meaning you did not discuss them with any-

body before October 27, 1972, right? A. No. Before

January 6.

Q. 73 A. Right. :

Q. That follows then, you hadn’t discussed it

then before October 27th, 1972? A. I hadn't.

Q. Had not, right? A. Yes (R 1244-1245).

Still another aspect of this problem involves the

Court’s refusal to permit the defense to question Battle

relative to the contents of the purported summary which

specifically attributed to Battle certain specific informa-

tion, and inferentially exposed him to be the source of all

the so-called information in the summary.

As to this, it was the Court’s ill-advised position that

because Battle denied having seen the statement, and the

State took the position they did not know who had given

the summary to Detective McComb, this made their ob-

jection valid (R 1189-1190). On the other hand, the de-

fense took the valid position that the defense had an ab-

solute right to show that the State’s chief witness made

statements out of court that were inconsistent with his in

court testimony (R 1190-1194).

In any event, even though the Court made the wrong

ruling, certainly one that cannot be defended in either law,

logic or common sense, one fact did emerge from his re-

marks. The Court recognized the “summary” as a “pur-

ported synopsis of what Mr. Battle supposedly had said”

(R 1193).

Given this expressed conviction by the Court, the

prosecutor’s analysis of this point will at least be inter-

esting, as he will be required to argue those flaws in

Simpson’s conviction are harmless errors—a position that

is thoroughly at odds with the adamancy of his objections

at the trial.

Again, during the trial on the merits, McComb (the

affiant) repeated that Defense Exhibits R-1 and R-2 were

a summary, or (using the Court’s term [R 1193]) a “synop-

sis” of the information supposedly given him by his in-

formant on October 10, 1972 (R 2048).

Of course, the Record here shows that the Court af-

firmatively refused to require the disclosure of the identity

of the person who supposedly gave this document to Mc-

Comb (R 2049-2050). While the Court’s refusal to require

disclosure on the suppression question was wrong, the fact

that the Court had previously allowed this witness to tes-

tify, over defense objections, as to his asserted conversa-

tion with this undisclosed informant (R 1916-1921), com-

pounded the error by also affronting the confrontation

clause, and as such camnot be as easily glossed over as the

Court and the prosecutor were willing to do. This course

of conduct was strenuously opposed by the defense in quest

of disclosure (R 2051-2059).

More specifically, it was argued to the Court, at this

juncture:

“We have the point being emphasized by Mr. McComb

today that this statement was a summary of the infor-

mation that was given to him on October tenth. Now,

all of this, Your Honor, I want the Court to under-

stand, bears on the propriety of the issuance of the

search warrant. It bears on the propriety of the

Court’s order sustaining the issuance of the search

warrant and the seizure of the Cadillac and Volks-

wagen.” (R 2057-2058).

Here, again, in denying the request for disclosure the

Record simply shows the Court’s penchant for assuming

the prosecutor was the appropriate lawgiver on the seri-

ous questions involved in this case. For, it was at this

point the Court allowed the Record to perpetuate these

remarks:

J would say [the defense request for disclosure was

being denied] . because of the argument of Mr.

Lipold” (R 2017).

B. The Trial

The facts in this case show the Volkswagen, charged

in Count 1 as having been illegally concealed, operated,

purchased or received by Simpson and his wife, had been

purchased by Mrs. Simpson from Kaiser Houston. Mrs.

Simpson had talked to a neighbor, Donald Rutger, and in

the course of that conversation she mentioned wanting to

buy a Volkswagen. Donald told her he had a friend who

could sell her one—this turned out to be Kaiser Houston

(R 2270-2271). She subsequently bought a Volkswagen

from Houston on September 8, 1971, paying for it from

money she had saved (she was a nurse) and partly from

money she borrowed from her mother-in-law. She re-

ceived a receipt (R 2272). It should be noted too that her

husband, Charles Simpson, not only had not participated

in this purchase, he had opposed the purchase because he

thought Volkswagens were unsafe (R 2272-2273). The

title shows the vehicle was transferred from Moyer’s. As

was shown in many instances by the State, the title often

jumped from owner to salvage yard without intermediate

ownership in the insurance company. Likewise, the evi-

dence supports the jump from the salvage yard to Mrs.

Simpson without title in Kaiser Houston who had a body

shop and repaired salvaged automobiles.

The original owner had been Shirley (Patton) Hud-

son who bought the 1970 Volkswagen new. Subsequently

the car was wrecked in an accident and sold to Moyer’s.

It had a white exterior with red interior. The car as pur-

chased by Nancy Simpson had been repaired and repainted

yellow (R 2285).

An Allan Clapp also owned a 1970 yellow Volkswagen

(R 1385) which had been stolen August 10, 1971 (R 1389-

1390).

Simpson’s contact with this car was limited to his hav-

ing operated it in the same fashion any husband would

operate his wife’s car—that is, occasionally.

The Cadillac, which was later titled to Simpson, had

a rather involved history—regardless of whose version

one accepts. According to the State, the Cadillac had

been stolen by Battle (R 746), from Mark Hartley, while

he was a guest at the Somerset Inn. Their evidence was

that it was delivered to Kaiser and then to Simpson.

Somewhere along the line the numbers were changed—

both by substitution of frame sections and by the substi-

tution of the numbers belonging to the salvaged car pur-

chased from Pearson Motor Sales. This latter car had

been totalled in a wreck in Cincinnati, Ohio. At least,

the owners regarded it as a total loss because it was a used

past model (R 469).

Tyrone Battle testified that after stealing the car he

sent it by his accomplice to Kaiser Houston (R 748-749).

The next day they picked up the money for this transac-

tion from Simpson (R 750).

In March or April, 1972, he left for California (R 772)

where he stayed until November, 1972 (R 753). He was

arrested in Cleveland in December, 1972 (R 754). Next,

he admitted meeting McComb for the very first time in

December, 1972 (R 754).

On cross exainination Battle implied he was rather

proud of the fact (R 776) that he was a notorious car

thief. His total exceeded a mere 300 or 400 cars (R 759).

Although he sold all these cars he could not tell us the

names of any of the people to whom they were sold

(R. 759).

In any event, as the Court saw it, he was not required

to reveal any of their names and addresses (R 760-761).

Also, and this is important, by his own admission, Battle

was a liar (R 766), and he had a history of having lied

to the police (R 766). As he put it, he will lie when he

is “hemmed up” (R 766), and that “it’s not a planned

thing. It is just something that happens right then”

(R 767).

—

Also, Battle admitted he will deceive the authori-

ties in order to avoid prosecution” (R 768). And he con-

ceded that although he had stolen possibly 800 or 900 cars

he had only been caught for stealing 3 cars. It was for

these thefts that he was sentenced to the workhouse

(R 771-774)

Battle denied that what in fact had happened was that

his brother-in-law stole the Cadillac from the Somerset

Inn, sold it to Kaiser Houston, and that he learned about

it and simply claimed credit and implicated Simpson in

order to improve his own predicament (R 788-789). At

least this much is certain, while Battle misdescribed the

car as being triple black—that is, black top, black body

and black upholstery (R 782-783), the car stolen from

Hartley had red upholstery (R 559).

Simpson’s version was that he purchased the car

through Kaiser Houston from Pearson Auto Sales. Pear-

son, in turn, had purchased it from the salvage dealer who

obtained it following the Cincinnati wreck. He regarded

the car as repairable (R 527-528). Pearson also testified

he sold the car to several men from Cleveland for $5,500,

which included sufficient parts to rebuild the car in its

entirety (R 534).

Simpson’s evidence further showed a relationship be-

tween the sale of his 1969 Cadillac to Kaiser and the trans-

fer of the 1971 Cadillac Eldorado to him (R 2417-2421).

The third count of the indictment involves the alleged

altering of identification numbers on a Camaro. The his-

tory of this car is as follows: A Leonard Hotaling bought

a 1969 Camaro (yellow exterior) which he wrecked in an

automobile collision. The car was then sold to a salvage

dealer—R & R Auto Sales. This car was subsequently

sold to the petitioner, Charles Simpson. He had the car

repaired but chose to resell it when his wife became preg-

nant and they needed a larger car. He sold it to a Mary

Ferguson. The car at this time was black with silver

stripes as it had been totally rebuilt and repainted. The

State alleged that this was a stolen vehicle.

C. Motions Made During Trial

In addition to the “Motion for a Mistrial” (based in-

ter alia on the abuse to Simpson’s right of confrontation),

the “Motion to Suppress”, which was renewed at various

points throughout the case (R 2261, 2657), the “Motion

for Discharge”, and for the “Disclosure of the Identity of

the Alleged Informant”; the defense moved (first at the

close of the State’s case [R 2261], and renewed at the close

of all the evidence [R 2656], and again post-verdict) for

a Judgment of Acquittal.

Still another motion sought to require the elimination

of the disjunctive features of the indictment, and for the

elimination of those alternatively charged crimes for which

there was insufficient evidence to support a conviction

(R 2656).

Additionally, there were the defense motions and ob-

jections related to the admission of so-called “similar acts”

testimony. The facts relevant to these motions will, at

least to some extent, be developed during the course of the

argument related thereto.

The denial of all these motions (R 2672), was likewise

assigned as errors.

D. The Instructions

Prior to the submission of this case to the jury the

defense submitted various written instructions, which were

coupled with the request that they be given to the jury

before argument. Those rejected by the Court included

the last sentence of No. 3, a segment of No. 4, No. 5, and

No. 7 (R 2686-2687).

In addition to the above formal request, the defense

made the further specific request with reference to the

various charges in this case “that an included offense on

each of those charges is that described in Section 4545.07,

motor vehicle with concealed identity” (R 2688). It was

argued at the time that:

“4549.07 is an included offense in the charges brought

under 4549.04; particularly 4549.04(E) ... insofar as

the concealed aspect is concerned. [Here] the

statute uses the same language, ‘buy, sell, receive, dis-

pose of, or conceal, or have in his possession a motor

vehicle.’ I think the clear intent of the legislature was

to make that particular charge under .07 an included

offense under 4549.04(E). I would [therefore] re-

quest the jury be instructed that such is the case” (R

2688-2689) .

The Court refused to give this instruction with refer-

ence to Count 3.

Additionally, the defense requested the Court to spe-

cifically limit the scope of the phrase “on or about” as

recited in the indictment (R 2693). Here, it was contended

that “on or about” should be defined as being reasonably

close to the date indicated (ibid.).

Subsequent to the charge the objection was made to

charging the jury disjunctively for the reasons that such

language does not emphasize that all must agree as to a

specific alternative (R 2753). Also, an objection was made

to the Court’s use of the word “disguise” as an aspect of

conceal. Also, the defense objected to the following seg-

ment of the Court’s charge:

“Where a motor vehicle is sold by one not an automo-

_ bile dealer to another, title to such motor vehicle can

pass without the formal issuance of a new certificate

of title, by means of the duly executed assignment of

title, and, as between such persons, notwithstanding

the failure to secure a new certificate of title, the own-

ership of such vehicle passes to the vendee” (R 2715).

ARGUMENTS RELIED ON FOR ALLOWANCE

OF WRIT

I. An Affidavit for a Search Warrant Which Makes

No Effort to Show the Source of an Undisclosed

Informant’s Conclusions, or to Demonstrate That

He Is Credible or His Information Otherwise Re-

liable, Cannot Support the Issuance of a Search

Warrant for the Seizure of a Motor Vehicle As

Stolen Property.

(A)

In this case, the affidavit for the search warrant for

the Volkswagen, the first warrant issued, contains the

conclusory assertion that (1) the affiant had “received

information from an informant to the effect that a Volks-

wagen automobile, 1970, was stolen in Cleveland, Ohio,

in the early part of August, 1971, that in the month of

September, 1971, a Charles Simpson purchased a wrecked

1970 Volkswagen from Moyer’s Used Car and that he,

Simpson, is using the title relating to the wrecked Volks-

wagen for the . . . stolen Volkswagen.”

Next, (2) the affiant concluded, for the Court, that

“this informant proved reliable by a subsequent check of

the Clerk’s office which records reveal that one Nancy

Simpson, the wife of Charles A. Simpson, is listed as the

owner of a... 1970 Volkswagen purchased September

14, 1971, from Moyer’s Used Cars.”

Further, (3) the affiant concluded the Volkswagen

purchased from Moyer’s “was a total wreck to such a de-

gree that it was virtually impossible to repair,’ and that

his investigation revealed a yellow Volkswagen had been

stolen on August 10, 1971, from one Allan Clapp. It was

then concluded, for the Court, that “the affiant has reason

to believe the Volkswagen . .. titled in the name of

Nancy Simpson and driven by Charles Simpson . [was

the stolen] automobile of Allan Clapp.”

For starters, it must be obvious from a mere cursory

reading of the affidavit that the affiant in no way even

sought to satisfy the basis of knowledge prong of the test

established (in Aguilar v. Texas, 378 US. 108 [1964]) for

measuring hearsay information in a probable cause set-

ting. This pry required the affiant to set forth some

of the underlying circumstances” which led his informant

to conclude in substance that, “Charles Simpson had pur-

chased a wrecked 1970 Volkswagen from Moyer’s and that

he, Simpson, . was using the title to the wrecked

Volkswagen for . [a] stolen Volkswagen”—that had

been stolen during August in Cleveland.

But the really short answer was supplied by the affi-

ant in his testimony. He admitted there is nothing in the

4. The two-prong test of Aguilar requires that the

magistrate be informed of (1) some of the underlying facts

circumstances from which the informant drew his conclusion,

and (2) some of the underlying circumstances from which the

affiant-officer concluded the information was credible or his in-

formation reliable. (378 U.S., at 114). Under Spinelli, infra, the

first prong of Aguilar may be satisfied by informant’s description

of — criminal behavior in sufficient detail (393 U.S. 410,

416-418).

affidavit showing the source of this informant’s knowl-

edge (R 60, 99). :

Given this crucial admission, the next inquiry must

be was the information reliable. In deciding this ques-

tion, it becomes important to know if the informant him-

self was offering direct knowledge as distinguished from

hearsay twice compounded. If the latter is true, then the

entire evaluation process must begin again at a second

level of remoteness. The question then is did the pri-

mary informant pass along sufficiently detailed informa-

tion to enable the Judge issuing the warrant to determine

(1) the credibility of the secondary informant, and (2)

the worth of his information. Not only this, if it should

happen that the secondary informant is a mere conduit

for hearsay thrice removed from a tertiary informant, the

evaluation process is escalated to yet another level of re-

moteness. See Spinelli v. United States, 393 U.S. 410, at

410 (majority opinion), and 423-425 (concurring opinion).

What this means is that ultimately the Court issuing

the warrant must have the benefit of someone’s firsthand

knowledge in order to evaluate the worth of the informa-

tion. And, he must have satisfactory proof of the credi-

bility of every person involved in the chain of transmis-

sion from the initial informant to the magistrate himself.

As applied to this case, then, there is just no way the un-

named informant can pass the second prong—that is, the

veracity prong—of the Aguilar-Spinelli formulation. This

being the case, our conclusion, since the credibility of the

affiant’s so-called informant was indispensable to the vali-

dation of the affidavit in this case is that the affidavit was

insufficient.

On the other hand, we concede it may be possible to

satisfy this disjunctive aspect of the veracity prong of

Aguilar without knowing anything about the credibility

of the affiant’s source—that is, his informant—the ques-

tion then is was the so-called information furnished un-

der circumstances giving reasonable assurance of trust-

worthiness.

In our judgment, even with this possibility, there

seems no way such a thesis could rescue this warrant. This

is so for a number of reasons. The first of these is, of

course, the patent fact that the “summary” of the inform-

ant’s information (R 114-119), or the “synopsis” of what

Battle said (R. 1193), shows the informant in this case was

a mere conduit, if he was that, for some more remote

source.

But even that is not all. The “synopsis” credits Bat-

tle with having said things that were both at variance

with items particularized in the affidavit, and with the

other indisputable facts. Then there is the irrepressible

fact that Battle denied having made the statements in the

synopsis. Furthermore, the Record categorically shows

Battle was in California; hence, could not possibly have

been subjected to any interview in Cleveland on October

10, 1972—the day McComb says he talked to his infor-

mant (R 12). Then, of course, the fact that the affiant’s

informant stated Charles Simpson, as distinguished from

his wife, had purchased a Volkswagen from Moyer’s

shows, if nothing else, the lack of any self-verifying de-

tails in the hearsay information relied on as the basis for

the warrant.

Even if the above analysis were invalid, the allega-

tions still could pass muster only if the affidavit furnished

a sufficient basis for the conclusion that the source of the

so-called information was “credible.” But it does not do

that either.

Here, of course, the affiant did not even suggest this

was the case. His conclusion was that his informant was

reliable,“ because he checked the title records on the

basis of the informant’s statement that Charles Simpson

had purchased a car from Moyer’s and was (—that is,

Charles Simpson) using this title for a stolen Volkswagen.

Thus, one must wonder how the discovery that Simpson’s

wife was the purchaser of a Volkswagen from Moyer’s

proves the informant is reliable. This is especially so

since the basis for the informant’s conclusion that the car

was stolen was not even suggested in the affidavit (R.99).

It is obvious this is the type of allegation the Court

doubtless had in mind when it concluded that,

“in the absence of a statement detailing the manner in

which the information was gathered [here the asser-

tions made by the informant about Simpson], it is

especially important that the tip describe the accused’s

criminal activity in sufficient detail so that the mag-

istrate may know that he is relying on something more

substantial than a casual rumor [then] circulating”

(Spinelli, at 416). :

(B)

The analysis developed above, as well as the valid

conclusions drawn therefrom, of course, apply full strength

ty’

informant’s “credibility.” Under Aguilar, 378 U.S., at 114, the

conclusion that an informant is credible is a relevant circum-

stance, if the basis for that belief is furnished the magistrate and

the basis for the informant’s conclusions are likewise exposed.

The reliability feature relates to simply an alternative way

the requirements of Aguilar can be met, if the source of the

informant’s conclusion is stated in the affidavit.

to the search warrant issued for the Cadillac—only more

so. As to this warrant, in addition to the failure to offer

any basis for the informant’s conclusion that “a 1971 El-

dorado convertible black Cadillac, being driven by and

titled in the name of Charles Simpson is a stolen auto-

mobile.” (R 59-60); “reliability” (as distinguished from

“credibility”) for this unnamed source was specifically

related to the fact that his conclusion that the Volkswagen

was stolen proved to be true.

If the above analysis requires the conclusion that the

original warrant (for the Volkswagen) was issued with-

out probable cause, then there is no way to avoid char-

acterizing this second warrant as having been based on a

“fact” that was “fruit of the poisonous tree.” Stated an-

other way, we contend that inasmuch as the Volkswagen

warrent was issued without probable cause, to the extent

the Cadillac warrant was based on the fruit of this illegal

search, the seizure of the Cadillac has to be viewed as

illegal. Silverthorne Lumber Company v. United States,

251 U.S. 385, 392 (1920); United States v. Paroutian, 299

F.2d 486, 489 (1962); State v. Thompson, 1 Ohio App. 2d

533 (1965).

(C)

Also, the Record shows the Court’s stated position to

be that Rule 41, Ohio Rules of Criminal Procedure, was no

bar to his consideration of the information the affiant

supposedly gave to the issuing judge. Here, the Court

specifically concluded that this Rule does not apply to

warrants issued prior to the effective date of our new

Criminal Rules—July 1, 1973.

We contend, on the other hand, that the existence of

these rules at the time the motion was considered was the

relevant circumstance. Furthermore, this specific rule ob-

viously reflected the growing awareness of the extent the

public has been victimized by police perjury. See Grano,

“A Dilemma for Defense Counsel: Spinelli-Harris, Search

Warrants and the Possibility of Police Perjury,” 1971 U.

III. L.R. 405, 427-457.

Under this Rule, of course, the requirement is that all

of the elements necessary to establish probable cause must

be expressly stated in the affidavit as the basis for the war-

rant. The upshot being that the judicial officer issuing the

warrant may only do so on the basis of information stated

in the affidavit when such is sufficient to support his inde-

pendent determination that probable cause exists. Whitely

v. Warden, 401 U.S. 560, at 564 (1971). From this position,

emerges the concept that the mere assertions by an affiant

that probable cause exists based on unsupported conclu-

sions cannot justify the issuance of a warrant.

As applied to this case, a necessary inference from the

Court’s position that he could consider the conversations

supposedly had by the affiant with the issuing Court, is

that he did so. }

Given then the Spinelli requirement that courts should

demand a higher standard of specificity of information

when scrutinizing an affidavit which relies on an in-

former’s tip (393 US., at 415), the fact that this affiant

was impeached to the extent that he was; as well as the

exposure that the affiant had obviously not indicated to the

magistrate that his primary source was also relying on

hearsay certainly cast a dark cloud on the Court’s ruling

in this regard.

In this sense, if the Court, in spite of Rule 41, had the

discretion to consider the asserted contents of these con-

versations with the issuing court, such was surely abused.

This is especially so in light of the State’s successful op-

position to any disclosures that might have led to the in-

formant’s identity.

In fully evaluating these contentions, it is hoped this

Court will recognize that one of the real problems else-

where (—that is, in places other than Ohio, where police

officers are almost automatically regarded by the courts

as honest, credible and reliable except when they are de-

fendants or defense witnesses) involves the genuine con-

cern being evidenced in the reported cases over the ap-

parent willingness of some magistrates to simply rubber

stamp applications for warrants. This most courts do de-

spite the virtual plethora of cases holding that courts can-

not, with impunity, continue to rely solely on an affiant’s

assertions that his informant is trustworthy, truthful, pru-

dent, reliable and credible. Thus, the law has imposed an

affirmative duty upon the courts, qualified to issue war-

rants, to see to it that they are not being deceived. See

United States v. Dunning, 425 F.2d 836, at 840 (1969). Also

see Rule 41(C), Ohio Rules of Criminal Procedure, which

expressly authorizes the production of witnesses before

the magistrate to assist him in the performance of his duty

to independently determine whether the privacy of our

citizens should be invaded.

If this concept has any validity whatsoever, then our

case presents a virtual textbook example of when a war-

rant should not have been issued. It also shows all of the

reasons why, if the Court felt obligated as this one obvi-

ously did, to issue the warrant, he should have required

the affiant to produce the informant at least so that the

court could satisfy itself that one existed. This surely

could have resolved some of these veracity questions. Un-

fortunately, none of these things were done, and we have

a situation here where the trial court, in reviewing the

issuance of a warrant, not only considered as relevant the

‘substance of information supposedly given outside the four

corners of the affidavit, but frustrated the defense efforts

to prove the issuing court had been willfully deceived.

The Court of Appeals, in dealing with the contentions

made above, drew the conclusion that “probable cause was

established from information supplied by the affiant from

his own knowledge irrespective of any additional allega-

tion in the search warrant attributed to an undisclosed in-

formant” (see Journal Entry, Appendix, p. A8).

As to this crucial holding, certain issues are at once

apparent. Unless the Court of Appeals’ opinion is being

either misread or misunderstood, while inferentially agree-

ing with counsel that the trial judge’s stated reasons for

validating these warrants were defective, the Court has

convinced itself that the affidavits were sufficient on their

face. This the Court concludes to be the case in a fashion

that leaves the trial judge, the trial prosecutor, and the

affiant unconvinced that the Court would zealously scruti-

nize shotgun assertions in an affidavit, if it just happens to

also contain a sufficient number of factual points. Not

only this, if the affidavit is subsequently validated the real

culprits can be secure in the thought that they will not

even be cautioned that there is a point beyond which they

can at least be rebuked for either lying under oath, or

being less than candid in their dealings with our courts.

As to this specific finding by the Court—that is, that

the affidavit was facially sufficient, it can only be that the

Court of Appeals has concluded that it can “fairly be said

that the tip [—that is, that Simpson was in possession of

these stolen cars, even after certain parts of it have been

corroborated by independent sources, . [was] as trust-

worthy as a tip which would pass the Aguilar test without

corroboration.” Spinelli v. United States, 393 US. 415.

The problem with this, however, is that one using this

standard finds only a rather nebulous report as to the Volks-

wagen, part of which was admittedly inaccurate. We have,

with reference to the Cadillac, the fact that the Volks-

wagen was shown to have been a stolen car and Simpson’s

possession of a Cadillac that was, when it was originally

placed on the market, a different color. The question is,

can the police seize this car to determine if it is stolen.

The answer seems obvious. The police can no more seize a

car “for investigation” than it can seize a man for this

purpose.

Il. An Intentional or Recklessly Untruthful Misrep-

resentation Will Result in an Invalidation of a

Warrant, the Same Is True of an Unintentional Mis-

representation of a Material Issue of Fact.

First of all, it is conceded, as the State must agree,

that when the internal evidence about the informant him-

self or the information supposedly supplied by him, fails to

establish intrinsically either personal credibility or in-

formational reliability, other evidence in the affidavit may

satisfy the alternate route to probable cause developed in

the wake of Spinelli. Here, this gap was sought to be

bridged by the product of subsequent investigations al-

legedly made by Detective McComb. Ostensibly, these

were undertaken to verify, or corroborate, information sup-

posedly supplied by his informant.

We should look then under Spinelli,“ to the relevant

assertions as set forth in the first affidavit. At the risk of

is “ean it fairly be said that the tip, even when certain parts

of it have been corroborated by t sources, is as trust-

asa which would pass A test without corrobora-

tion?” 393 U.S., at 415.

sounding repetitious, we contend that the affiant’s actions

were deliberate and willful. This is especially so since by

his own admission he only put in his affidavit the things he

felt checked out. The necessary inference from this is that

he intentionally and deceptively left out those things his

investigation showed were in conflict with what he reported

his “informant” had said. Of interest as to this point, the

Record shows that in defending these crucial omissions, this

officer brazenly testified that “quite naturally” (R 64),

he did not put those things in his affidavit which might

have tended to undermine his efforts to show the informer

was reliable. In other words,. . [He was] not interested

in showing . . [the informant] was not reliable, [he was]

interested in showing he was reliable so it was for that

reason. . . [he] did not put it in the affidavit.” (ibid.).

In this same vein, there is McComb’s cute testimony

that he had not been told, nor had he testified his informant

had said, the car Simpson’s mother was driving was stolen

(R 65-66). Given the fact McComb testified he checked the

Title Bureau for cars in the name of the various Simpsons,

his testimony that he did not check and determine, before

warrants were issued, whether the mother’s car was stolen

property is at least suspect. This is especially so in view

of his express testimony that he expressly checked the

records “in regard to vehicles owned by Charles Simpson,

by Nancy Simpson, and by Rosa Simpson (R 15). But

actually it is more than that. The conclusion that his tes-

timony was perjurious becomes even more irresistable in

light of the showing that the written summary of what the

informer told him (R 114) (that is, the purported synopsis

of what Battle said [R 1193]), credits the informer with

having reported to McComb, before the warrants were is-

sued, that the mother’s car was stolen (R 117).

Thus, to believe McComb was giving anything other

than false testimony, and misleading conclusions in his

affidavit, this Court must be convinced that when McComb

stated he checked on the cars in the Simpson name and

found contrary to what his informant had supposedly said,

a Volkswagen in the wife’s name, that he did not check

at that time to see whether there was a stolen Chevrolet

stationwagon listed to Simpson’s mother.

In any event, regardless of the position the Court

takes on this point, it must still be recognized that the in-

formant specifically credited the Cadillac car with having

been purchased by Simpson from Moyer’s whereas the

records, checked by affiant, showed it had been purchased

from a different dealer in a different county. Add to this

the fact that the informant had said the Volkswagen was

in Simpson’s name and that too turned out not to be true.

Neither of these facts were stated in the affidavit, nor was

any mention made therein about the misinformation rela-

tive to the mother’s car.

Add to this Battle’s testimony denying that the remarks

were his, and the fact that the informant was giving hear-

say information that was not exposed to be such in the

affidavit, and the issue here becomes most clear.

Surely, then, it must be as obvious to this Court, as it

was to the trial court, that the considerable amount of mis-

information in the affidavit was deliberate.

The question thus created, one which may be viewed

as novel for our courts (at least our research has not un-

covered any cases on this point), involves the effect of

inaccurate or willfully false statements in an affidavit. A

possible explanation for this could be the fact that this

Court has not clearly decided this issue. See Steele v.

United States, 267 U.S. 498, at 501 (1925).

Other courts, however, have concerned themselves

with the problems created where, as here, a showing of

deception, falsehoods, misrepresentations, or imposition on

the magistrate is made. The leading cases on this point

include United States v. Carmichael, 489 F.2d 983 (7th Cir.

1973); United States v. Thomas, 489 F.2d 664 (5th Cir.

1973); and United States v. Marihart, 492 F.2d 897 (8th Cir.

1974).

In Carmichael, the Court took the position that a defen-

dant is absolutely entitled to show any misrepresentation

by the affiant of a material fact in his affidavit, or an

intentional misrepresentation whether material or not.

Further, that if a deliberate misrepresentation is shown,

“the Court need not inquire as to . . . [its materiality].”

Id., at 988-989. Where the misrepresentation is negligent,

or reckless, the Carmichael Court would then determine

whether it affected the issuance of the warrant (ibid.).

The Fifth Circuit, in Thomas, held that,

‘. . . affidavits containing misrepresentations are in-

valid if the error (1) was committed with an intent to

deceive the magistrate, whether or not the error is

material to the showing of probable cause; or (2) made

nonintentionally but the erroneous statement is mate-

rial to the establishment of probable cause for the

search.” (489 F.2d, at 669.) 8

The Eighth Circuit Court, in Marihart, after consider-

ing both of these views, adopted the position as expressed

in Carmichael. In line with this, they ruled that an in-

tentional or recklessly untruthful, misrepresentation will

result in an invalidation of a warrant as will an uninten-

tional misrepresentation of a material issue of fact.

Quite obviously, these rules were designed to test the

credibility of affiants whose testimony or affidavits are

before the Court. See Forkosh, The Constitutional Right

to Challenge the Contents of Affidavits in Warrants Issued

Under the Fourth Amendment, 34 Omo Sr. L. J. 297 (1973),

and Kipperman, Inaccurate Search Warrant Affidavits as a

Ground for Suppressing Evidence, 84 Harv. L. Rev. 825

(1971).

Anticipating a possible contention that the decisions

above, which clearly authorize an in depth exploration

into the asserted basis for the issuance of a warrant, are

merely Federal cases, and do not apply full strength to

state courts, the recent decision of North Carolina v.

Wrenn, ....... „ , 94 S. Ct. 3180 (1974), may prove

enlightening to the prosecutor. Here, the Court was deal-

ing with a state prosecution involving a warrant that on

its face satisfied the applicable state statutes and was con-

stitutionally adequate. Although the conviction had been

affirmed by the state Supreme Court, apparently in line

with the concept that only facial sufficiency was required,

the Federal District Court, in granting a Habeas Corpus

Writ, saw it as his duty “to rule out erroneous averments

in the affidavit and proceeded to test the validity of the

warrant in the light of the remaining uncontested aver-

ments,” and after so doing found the affidavit insufficient.

On appeal, the Federal Court of Appeals approved this

procedure. This Court then denied certiorari with only

two judges dissenting from this action.

Surely then if this type of analysis is given the af-

fidavits in this case, the required conclusion can only be

that this argument supports our position, in an alternative

way to that urged in Argument No. I.

In dealing with the defense contention that the affi-

davit contained false, perjurious and willfully deceptive

representations, the Court made the interesting holding

that:

“No case has been cited that holds either (1) all in-

formation given to police officers by undisclosed in-

formants must be stated in the affidavit, or (2) if any

information stated by the informant turns out to be in-

accurate, the search warrant is invalid notwithstanding

the fact that the accurate information standing alone

is sufficient to establish probable cause.” (id., at page

7.)

In support of the Court’s ultimate thesis on this point,

the case of United States v. Damitz, 495 F.2d 50 (1974), was

cited. Apart from the fact that an analysis of the Damitz

case does not support the Court’s disposition on this point,

there is the fact that the two premises, upon which the

Court structured its syllogism, simply cannot survive close

scrutiny.

While the Court is quite correct when it concludes that

“no case has been cited that holds. . (1) all information

given to police officers by undisclosed informants must be

stated in the affidavit”, the fact is no case could possibly

hold that such is a requirement. On the other hand, cases

were cited which do hold that a showing of deception or

imposition on the issuing magistrate are sufficient circum-

stances to require the voiding of a search warrant. Those

cases include United States v. Carmichael, United States v.-

Thomas, United States v. Marihart, and United States v.

Dunning.

The upshot of these cited cases is that our courts

should not be deceived, as the magistrate in this case was,

into routinely accepting the naked representations of po-

lice officers. This is especially so if they are from Cleve-

land, Ohio, where “history has shown that the police act-

ing on their own cannot be trusted”.

While this proneness on the part of some of our courts,

to accept the oath of a police officer as gospel, and to view

as unthinkable the idea that all police are not honest and

fair, may have had some high degree of validity in some

bygone era when a presumption of regularity and candor

concerning law enforcement officers could be invoked.

But given the facts of this case, and numerous others (both

state and federal, which show members of the Executive

or Enforcement branches of government are, after all, hu-

mans like the rest of us), the fact that they are police-

men is alone a circumstance that should require judges

issuing warrants, and those reviewing such actions, to

carefully scrutinize their ex parte papers.

The federal appellate courts seem willing to impose

an affirmative duty on those issuing to see that they are

not being deceived (United States v. Dunning, 425 F.2d

836). Thus, it comes as a real blow to learn that the trial

courts in Ohio are not required to exercise comparable

control over those who apply to them for warrants.

Dealing then directly with what counsel regards as

the heart of the Court’s ruling on this point, the affirma-

tive position here being taken is that United States v.

Damitz does not stand for the invariable proposition (as

the Court of Appeals’ opinion can be read to hold) that

where there is sufficient accurate information in the affi-

davit to pass constitutional muster, such is all that is re-

quired.

Damitz, to be sure, did look past certain inaccurate

portions of an affidavit, and drew the conclusion that

apart therefrom the affidavit was sufficient. However,

the Damitz Court made the point that the affidavit con-

taining the faulty information was that of a third party,

“not that of a government agent” (id., at 55). Further,

that Court held “the case might have been different if

a government agent had made an affidavit containing ma-

terial false statements” (ibid.).

So structured, it is apparent that Damitz is really not

in point here. Not only this, the real point can be made

by paraphrasing the Court’s premise to read: no case

can be cited which holds that if certain information is

either artificially or correctly attributed to an informant

turns out to be inaccurate, or the affidavit otherwise con-

tains intentional falsehoods (or even unintentional mis-

representations) the affidavit must be deemed valid if

apart from these defects it still contains probable cause.

This brings us back to the Court’s original premise

that no case was cited showing, in effect, that the exis-

tence of falsehoods in an affidavit is sufficient to void a

warrant containing enough accurate information to other-

wise support its issuance. What the cases of Carmichael,

Thomas and Marihart all agree on is that the relevant

considerations are (1) whether the falsehoods were inten-

tional, and (2) whether they were made with an intention

to deceive. All of these cases hold that if the falsehoods

were intentional (whether on a material point or not) the

warrant should be voided.

Then there is the case of United States v. Belculfine,

508 F.2d 58 (1974), which was cited to the Court during™

argument, as a more recent decision in this area. This

case also refutes the Court’s stated position that “no case

has been cited” bearing on these points. As to the Bel-

culfine case, it takes the rather strong position that even

after having determined “the misstatement in the affi-

davit as immaterial in the sense of not being a ‘but for

essential’ of probable cause, does not dispose of the

case” (id., at 62). This view is, to be sure, diametrically

opposed to that expressed by the Court of Appeals in its

Journal Entry. (Appendix, p. A9).

In the view of the Belculfine Court, although the mis-

‘statement related to an immaterial fact, it nonetheless

“changed a marginally adequate affidavit into a solidly

persuasive one” (ibid.). Further, that Court reasoned that

[Al knowing misstatement of so significant a fact would

exhibit exactly that quality of unscrupled zeal which im-

pelled the adoption of the exclusionary rule” (ibid.).

Even more significantly, the Belculfine Court, in what

can be regarded as a direct refutation or confutation of the

position taken by the Court of Appeals on the same point,

reasoned that:

Were the judicial response to be merely the elimina-

tion of the false statements and the assessment of the

affidavit’s adequacy in the light of the remaining

averments, enforcement officers would be placed in

the untoward position of having everything to gain

and nothing to lose in strengthening an otherwise

marginal affidavit by letting their intense dedication

to duty blur the distinction between fact and fantasy.

We therefore see no supportable alternative to sup-

pression of evidence obtained pursuant to a warrant

based on an affidavit containing an intentional, rele-

vant, and nontrivial misstatement. We see no basis

for confining this sanction to false statements made

with the specific intent to deceive the magistrate as

opposed to false statements merely intended to ‘round

out the picture. We see no danger of frequent frus-

tration of warrant-based searches and seizures occa-

sioned by challenges based on intentional misstate-

ments. Such challenges, to be entertained, would

have to be preceded by a showing of falsity of allega-

tion—a showing presumably not easily to be made in

most cases.” (Id., at 63.) (Emphasis added.)

III. The Right of Confrontation and the Hearsay Rule

Are Both Violated When a Crucial Witness Is Al-

lowed to Relate As Substantive Evidence the Con-

tents of Conversations Had With an Undisclosed

Informant, and With Others—Including a Judge

and the County Prosecutor.

So that this aspect of our Petition can be properly

structured, the factual background for the above conten-

tion, in the first instance, relates to the following segment

of the Record:

Q. . . Will you tell the Court and jury how

your investigation or involvement in this matter be-

gan?

MR. WILLIS: Objection.

. s * 2 *

MR. WILLIS: [Out of the hearing of the jury]

I guess he is going to say some informer told him

something. I don’t know who it is he is going to

be talking about. I am objecting.

MR. LIPOLD: Of course, we have to get

started somewhere. We have to start out where

he started.

MR. WILLIS: I don’t think we should start

with some unnamed informant that you are going

to resist, make every effort to resist [disclosing].

THE COURT: The objection is overruled. You

may answer.

THE WITNESS: I was directed by Sergeant

Dierker to conduct an investigation into the possi-

bility that Mr. Simpson was involved with some

stolen automobiles.

Q. All right. Now, after that what happened as

far as your investigation is concerned? Particularly

calling your attention to October 10, 1972, did any-

thing happen on this day in relation to this investiga-

tion?

MR. WILLIS: Objection.

THE COURT: All right.

THE COURT: [at side bar] What is the ground

for your objection, Mr. Willis?

MR. WILLIS: I anticipate he is going to say

on that day he met with an informant who gave

him information. This is precisely what he testified

to on the motion to suppress.

THE COURT: Will you please repeat the ques-

tion?

(Question read.)

THE COURT: The objection is overruled. You

may answer.

A. Yes, something did happen.

Q. What was it?

MR. WILLIS: Objection.

THE COURT: Overruled.

A. On September—excuse me, on October 10,

1972, Detective Tesar, Sergeant Dierker and myself

met with an informant who related—

MR. WILLIS: Objection.

THE COURT: Overruled.

MR. LIPOLD: Continue.

A. —who related information to us in regard to

some particular automobiles that were owned by Mr.

Simpson.

Q.. Now, what automobiles did you receive in-

formation relative to? ~

* MR. WILLIS: Objection.

THE COURT: Overruled.

A. A particular Cadillac automobile, a Volks-

wagen automobile, a Porsche automobile, a Corvette

automobile was mentioned. I believe a Chevrolet

stationwagon was mentioned. There may have been

others. I believe that was substantially it.

Q. This information, or whatever it was that you

received at that time, as a result of it, what if any-

thing did you do?

MR. WILLIS: Objection.

THE COURT: Overruled.

A. The following—well, I believe it was the fol-

lowing day we went to the Cuyahoga County Title

Bureau, that is Detective Tesar and I.

Q. For what purpose? A. At the title bureau,

I conducted an investigation into their records of auto-

mobiles owned by the Simpson family, that is including

Charles Simpson, his wife Nancy, and his mother,

Rosa.

Q. Did you find any such titles? A. Yes. I

found a number of automobiles that were titled, either

actively or dormantly, in their name (R 1916-1920).

Thus, the Record reveals, even to a casual student

of the due process spectrum, that the thrust of the above

sequence was to suggest that an informant’s disclosures_

were completely vindicated by the officer’s investigation.

The question then is, did the State’s intentional use of

this evidence violate the petitioner’s right of confronta-

tion. Any evaluation of this issue must, of course, start

with a consideration of the cases of Pointer v. Texas, 380

U.S. 400 (1965), Douglass v. Alabama, 380 U.S. 415 (1965),

and Smith v. Illinois, 390 U.S. 129 (1968). The upshot of

these cases is not only to the effect that an accused is en-

titled to confront any witness whose declarations are

weighed against him; he is entitled to cross examine them.

Not only this, by virtue of Smith v. Illinois, supra, an ac-

cused is entitled to have any such witness completely un-

masked.

As applied here, it is at once apparent that to the ex-

tent the informer’s information supposedly supplied (or

to the extent Detective McComb credited him with being

the source thereof) added any weight to the prosecutor’s

case in a manner not subject to cross examination, it vio-

lated these principles.

Here, of course, there was not only an inability to

cross examine the alleged informant to whom the imper-

missible disclosures were attributed, this wrong was ag-

gravated by the fact that at the time the questions were

asked the prosecutor knew he would resist any disclosure

request. Surely this makes his having asked these ques-

tions deliberate. In our judgment, this was an act of

inexcusable misconduct.

In any event, it was because of these questions, asked

with the Court’s aggressive approval, that counsel made

the Motion for a Mistrial, the denial of which is assigned as

error. Here, it was contended:

J. . . move for a mistrial at this time because of

certain statements that have been permitted into the

record over my objections.

There has been testimony elicited from Mr. Mc-

Comb about information supplied to him by informers,

whose identity has been withheld from counsel. This

violates, in my judgment the admission of this, the

defendant’s right of confrontation. I think it is under

the 6th Amendment. It also violates all of the rules

that I know with reference to the admission of hearsay

testimony.

Also, the same objection and motion for mistrial

is made for the same reasons as it pertains to con-

versations had with Mr. John T. Corrigan.

The obvious thrust of this examination was to sug-

gest that Mr. Corrigan had affirmatively approved and

deemed sufficient the information that had been sup-

plied by Mr. McComb and the informer to him and I

don’t think that was appropriate.

All this testimony about the basis for the search

warrant was certainly unnecessary and prejudiced the

defendant’s right to a fair trial.

Because we have the injection of Judge Matia as

another factor bolstering the efficacy of the police

efforts insofar as the seizure of these cars is concerned.

I don’t think the State was entitled to present that

evidence and I feel it violates the defendant’s right of

confrontation.

Also, I might add that in view of the evidence that

has already been permitted from Mr. McComb, about

an informer, if the Court is disposed to reject my mo-

tion for a mistrial, that the Court rule. . whether

I am ever going to be supplied with the identity of

this fictitious informer, if he is anybody other than

Battle—fictitious is my judgment—in order that I be

in a position to properly examine Mr. McComb.

I have to know whether or not this so-called in-

former exists before I embark on my cross-examina-

tion. I have to also know what his attitude is based

on my interview with him and all of these things are

necessary if I am to have an adequate opportunity to

cross-examine Mr. McComb.

I cannot assume the burden of cross-examining

this man, knowing that he is going to be giving the

fantastic leadway he has been given today by the

Court to credit an informer with having told him

things. And I have no way, absolutely no way of

verifying this.

So, therefore, I can’t ask him any questions be-

cause I am at his mercy, if I ask him questions about

what some informant told him.

Mr. McComb is not the type of person at whose

mercy I want to be.” (R 1945-1949).

These motions, as were virtually all but the most ele-

mentary, were denied. Here, the Judge again exposed his

apparent lack of comprehension of either our objections

or of the willfulness of the prosecutor’s tactics. If it were

otherwise, there is just no way the Court could have possi-

bly concluded, in response to a facet of these motions that,

“there was no testimony relative to the content or actual

words that passed back and forth” as between the prose-

cutor and the Judge who issued the warrant (R 1961).

As to this expressed view by the Court, see Favre v.

Henderson, 464 F.2d 359, 362 (5th Cir.), cert. denied, 409

U.S. 942 (1972). In Favre a policeman was allowed to tes-

tify that his pursuit of the defendant was caused, at least

in part, by information obtained from two reliable in-

formants, but he did not testify as to the content of his

conversations with the informants. Id., at 360-61. The

court found that a logical inference from the testimony

would go beyond identification of the defendant to an in-

ference of guilt and thus, that the implied statements were

hearsay as offered to establish guilt. Id., at 362. Admis-

sion of the testimony violated defendant’s Sixth Amend-

ment right to confront the witnesses against him and,

therefore, was reversible error. Id., at 463.

Surely it must be apparent that the Favre case is al-

most on all fours with the case here, at least insofar as

the impermissible use as proof of guilt of the necessary

inference flowing from this type of evidence is concerned.

Despite this, our Court of Appeals, in resolving these

very serious problems involving confrontation and hearsay,

apparently concluded that the Roviaro principle can be ex-

teuded to authorize a police officer to report to the jury

the substance of his conversation with an undisclosed in-

formant, the County Prosecutor and a Common Pleas

Court Judge. Apparently, this would not deprive the ac-

cused of a fair trial, if (as was the case with the false

statements in the affidavit) “there is enough evidence to

convict without the information” to which this argument

was addressed.

The fact is there is no way to say how much the jury

may have been influenced by McComb’s testimony that he

screened the objected to hearsay with the judge and prose-

cutor.

At least this much is certain, the Court was spe-

cifically directed to Favre v. Henderson, 464 F.2d 359

(1972), which involved a situation somewhat comparable

to ours—only not nearly as bad. In Favre, unlike the

officer in our case, the testimony was simply that the de-

dendants in that case had become targets because of in-

formation supplied by informants. No testimony was

given as to the contents of the witness’ conversations with

these informants. Stated another way, the hearsay itself

was not admitted as substantive proof.

In our case, this is exactly what occurred. The result

in the Favre case was that a logical inference from this

testimony was that of guilt. Yet, the same issue becomes

harmless error in our case. This despite the fact that the

prosecutor’s justification for asking these questions really

does not make sense.

IV. A Trial Court Cannot, Consistent With the Require-

ments of Due Process, Sanction the Nondisclosure

of the Identity of an Alleged Informant Where It

Appears Necessary (1) to Avoid the Risk of False

Testimony, (2) to Secure Useful Testimony, or

(3) It Is Essential to a Fair Determination of a

Cause or Issue.

In Scher v. United States, 305 US. 251, at 254 (1938),

the Court concluded, and we surely recognize this as the

fact, that:

“Public policy forbids disclosure of an informant’s iden-

tity unless essential to the defense, as, for example,

where this turns upon the officer’s good faith.”

Next, in commenting on this same thesis, the Court,

in Roviaro v. United States, 353 U.S. 53, at 60-61 (1957),

concluded that “where the disclosure of an informant’s

identity . . . is relevant and helpful to the defense of an

accused, or is essential to a fair determination of a cause,

the privilege must give way.”

Thus it is that regardless of the known penchant of

most of our judges to allow the police to decide whether

disclosure is required, the law has determined that whether

disclosure is required depends upon the circumstances of

each case. This perforce involves a balancing of the pub-

lic’s right to the flow of information and the requirement

of providing a fair trial to the defendant. In this sense, it

follows that an informer’s “identity cannot be concealed

from the defendant when it is critical to his case.” Branz-

burg v. Hayes, 408 U.S. 665, at 668 (1972).

Thus, the test that emerges from these cases is that

where there is a reasonable probability that the informer

can give testimony necessary to a fair determination of a

material issue (see 51 Federal Rules Decisions 378), the

burden is on the prosecution to show that the informer

cannot supply any relevant evidence.

If the above reasoning is valid, then there is really no

way to deny that disclosure can be constitutionally re-

quired. This being the case, it is only necessary to deter-

mine whether circumstances requiring disclosure are

present here.

Given the Motion to Suppress, as amplified by Battle’s

evidence that he did not supply the “information” at-

tributed to him by “the informer,’ and the Court’s flat

recognition that the summary of the informer’s informa-

tion was a “purported synopsis of what Battle supposedly

had said” (R 1193); as well as the intimation in McComb’s

testimony that the informant may have been a police of-

ficer (R 128), it is apparent there were sufficient circum-

‘stances here to raise a legitimate question as to whether

McComb committed perjury not only when he testified (if

he did) before the issuing magistrate, but also in his testi-

mony at this trial. Surely, this question could not be re-

solved merely by accepting the officer’s testimony that he

would not reveal his informant’s identity (R 68) as the

sole basis for the Court’s decision not to require him to

do so (R 2065).

In addition, since McComb and Battle both testified té

facts which were in contradiction to certain segments of

the informant’s summary, the defense right to interview

the “informer” to have compulsory process Washington v.

Texas, 388 U.S. 14 (1967), and to cross examine him Cham-

bers v. Mississippi, 410 U.S. 284 (1973), were frustrated.

In this case, the Record is clear, there is no way to

know what the posture of the defense would have been if

disclosure had been required. Nor is there any way to

know what the informer’s testimony would have been if

the defense had had the benefit of the person’s evidence.

It is also quite possible, we contend, that the officer made

up this informant (and Battle’s testimony leaves no other

option), in order to camouflage certain ulterior motives.

Here, too, the Record is clear that the Court did not

make a determination that there was a legitimate basis

for nondisclosure. Nor did the Court even seek to deter-

mine whether, in spite of our stated position (R 2511 et

seq.), disclosure would not have been of any possible bene-

fit to the defense. We contend, therefore, that these fail-

ures of the Court cannot be said to be only an abuse of dis-

cretion, but they also must be viewed as a denial of the

right to the compulsory process for the presence of wit-

nesses, and as a violation of the right to confrontation.

Furthermore, the failure of the prosecutor to disclose,

especially in view of our affirmative efforts to gain such

information (even apart from the Court’s unwillingness

to insure a fair trial for this petitioner) amounts to the

suppression of evidence. Stated another way, we contend

it was prosecutorial misconduct within the meaning of

Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United

States, 405 U.S. 150 (1972) to withhold information which

was at the very least material to impeachment of certain

crucial prosecution witnesses.

The fact that the prosecutor also asked questions

eliciting information which was specifically attributed by

their witness to the informant, whose identity he did not

intend to disclose, only aggravates his misconduct.

At least this much is certain, the testimony rendered

by Detective McComb and by Tyrone Battle was both

crucial to the State’s case and extremely damaging to the

accused. To this extent their credibility was a major fac-

tor, one of vital importance to the petitioner. Given these

undeniable facts, if the defense was entitled to disclosure,

any belated argument that the ultimate effect of the Court’s

rulings denying disclosure and the other related aspects

was harmless error has to be regarded as sophomoric.

The same would be true of any allied contention that the

prosecutor should be excused for not knowing better.

Again, so that our position may be clear, we contend

as to this segment of our petition, that for the informer

privilege to be deemed controlling, or otherwise appli-

cable, it must be properly asserted (a situation that did not

occur here) and the Court is at least required to make

meaningful findings both as to the propriety of the asser-

tion of the privilege and as to whether the information

sought would be “relevant and helpful” to the defense.

Yet, in this case, for reasons that were not articulated,

the trial court, solely on the basis of the officer’s testimony

and the prosecutor’s unsupportable argument, not only spe-

cifically denied the defense information as to the informer’s

identity, the Court otherwise frustrated our efforts to de-

termine his identity by grievously limiting our cross ex-

amination of the officer. This untenable position the Court

‘maintained even after the State’s chief witness denied

having made certain remarks supposedly attributed to him

by the informant, and after it was further shown that cer-

tain factual assertions credited to the informant were

either not in his “written summary,” were not factual, or

were misrepresented in the affidavit for search warrant.

All this points to crucial flaws in the Court’s sum-

mary assessment of this situation. For, if under Roviaro

v. United States, the Court had the duty “of balancing the

public interest in the flow of information against

[Simpson’s] right to prepare his defense” (353 U.S., at 62);

then surely such requirement is clearly at odds with the

arbitrary and indefensible position taken herein. Refer-

ence here, of course, is being made to the Court’s spontane-

ous ruling that disclosure would not be ordered.

Again, the fact that the Court maintained this adamant

position is even more startling after the Court permitted

Detective McComb to testify, in the presence of the jury,

over defense objections as to information supposedly sup-

plied him by the informant during the course of his in-

vestigation. Pointer v. Texas, 380 U.S. 400 (1965).

Be all that as it may, there is just no way it can be

concluded that the judicial task of seeking fundamental

fairness could in this situation ever be achieved where a

police officer is given the power to decide both what is

privileged and whether the defense is entitled to evidence

which so obviously could be put to beneficial use.

Under the proper standard the trial court’s ruling can

only be justified, if it had been shown that the informer’s

evidence did not relate to any of the deciding factors upon

which a conviction or acquittal could rest. In addition, it

had to be affirmatively shown that any possible testimony

by him was grossly outweighed by the factual consider-

ations favoring nondisclosure in the public interest.

Given these tenets, for any court, including this one,

to deal impartially with and balance such conflicting in-

terests, some knowledge was required as to what relevant

information the informant actually possessed. Since the

Court was not aided by any evidence from which it could

have possibly resolved these issues against the petitioner

impartially, it can only follow that the Court must have

indulged in a judicial guessing game when it ruled in favor

of nondisclosure at the expense of Simpson’s right to a fair

trial. See Jencks v. United States, 353 U.S. 657, at 671

(1957).

Ik such were not the case, at least this much is cer-

tain; the record in this case shows no basis (absolutely

none) for the trial court’s decision against disclosure.

Given even an equiponderant interest between the public

and the accused, it seems only fair that due process would

require a fuller analysis than has been given to this issue.

Surely then an apparent finding that the public interest

required that the identity of this informer not be disclosed

can never be delegated with impunity to the witness as has

been attempted here.

While it is true, as a basic premise, that the range of

conduct prosecuted by our criminal statutes is broad, the

danger in most situations of violent repercussions against

witnesses really does not present any significant objection

to disclosures of their identity. Thus, the sensible require-

ments are that the State has no interest in denying an ac-

cused access to all evidence that can throw light on the

issues involved in his case. See People v. Riser, 47 Cal. 2d

566, 305 P.2d 1, at 13 (1956). Here, of course, given the

possibility that the informant was a police officer (R 128),

it does seem strange that due process could weed 1x

that he remain anonymous.

As to this possibility, the case of United States v.

Leichtfuss, 331 F. Supp. 723 (1971), seemis to be directly in

point. Here, the United States Attorney opposed a request

for the names and addresses of potential government wit-

nesses, all employees of the government. The Court, in

granting the request, ruled that “certainly there is no ap-

parent threat that disclosure of the identity of these wit-

nesses .. . will subject the witness to physical . . harm

or to threats designed to make him unavailable to testify

or to influence him to change his testimony.” Also see

Will v. United States, 389 U.S. 90, at 96. There, this Court

recognized that where it is shown “that such disclosure will

involve physical risk to individuals“ (389 U.S., at 101)

such is a circumstance that must be dealt with.

These cases and others seem to require a showing of

at least probable cause to believe the danger of intimida-

tion exists. Even when such danger does exist, the re-

quirements of due process are that where the information

sought is “relevant and helpful to the defense of any ac-

cused, or is essential to a fair determination of a cause, the

privilege [of nondisclosure] must give way.” Roviaro v.

United States, 353 U.S., at 60-61. In this latter situation

the prosecution acquires the choice, either surrender the

information or “dismiss the action” (ibid.).

Still another court that has dealt with the question as

to whether disclosure can be required is the Supreme

Court of Illinois. In their decision (People v. Lewis, 20

III. App. 3d 161, 313 N.E.2d 170 [1974]), they dealt specifi-

cally with the prosecution’s refusal to disclose the identity

of their informer on the ground that his life had been

threatened.

The Court reasoned that, “the desirability of calling

. [the informant] as a witness, or at least interviewing

him. „ was a matter for the accused rather than the

government to decide.” If the State’s contention that dis-

closure cannot be compelled were valid, “a defendant

would never be entitled to know the informer’s identity,

for they could always claim [as they always do in Cleve-

land, in even the most routine cases] that disclosure would

place the informer’s life or health in jeopardy.”

After reasoning it was unfair to refuse to afford a de-

fendant the opportunity to decide for himself whether the

informer could provide testimony helpful to the defense,

the Court concluded that the State’s interest in protecting

informers and the flow of information they provide was

insufficient to justify denying disclosure of their identity

where the same is required is a violation of constitutional

rights.

Such being the law elsewhere, it remains strange how,

in this case, the issue can be said to turn solely on the

basis of the conclusory assertions made by a witness whose

testimony portends, as this officer’s does, the very real

possibility that his evidence was perjurious.

During one of the arguments made in quest of dis-

closure, counsel stated:

„J don’t think that the Court can properly put

the defendant in a position of withholding from him

relevant evidence. The test as I see it, in the light of

Alderman {Alderman v. United States, 394 U.S. 166

(1969)], in the light of Reynolds [United States v.

Reynolds, 345 U.S. 1 (1953)], and in the light of the

Sirica opinion in the Nixon case [360 F. Supp. 1

(1973) ], this evidence is arguably relevant. We have

a right to know who the informer is.

My right to cross-examine McComb is seriously

curtailed if I can’t raise the foundation to impeach

him.

Apart from that aspect, we have the testimony of

Mr. Battle that he did not relate any of this informa-

tion to anybody and yet the statement credits Battle

with having contributed all this information.” (R

2057).

As our sagacious prosecutor saw it (and this was the

ultimate basis for the Court’s decision [R 2067]), the

principle involved in these cases “is entirely different

from the matter now before this Court. It is not even

similar. There, [they] are talking about an executive

privilege.” (R 2059-2060).

. Aside from exposing a lack of substantive knowledge

as to the basic thrust of these cases, the prosecutor’s stated

view likewise reveals a total lack of comprehension of the

analogy between the privileges involved. In our case, the

question dealt with the witness McComb’s inferential as-

sertion of the informer privilege against our request for

the disclosure of his alleged informant’s name and where-

abouts. In the Nixon case, which was affirmed in Nixon

v. Sirica, 487 F.2d 700 (1973), the question there was

whether the executive privilege was a sufficient barrier

to the disclosure of certain tapes.

Thus, the issue in both cases involved a determina-

tion as to whether the person asserting the privilege (The

President, in Nixon, or McComb, in our case) was the

sole judge as to whether disclosure was required.

In Nixon, Judge Sirica, after rejecting the contention

that, “it is the executive that finally determines whether

its privilege is properly invoked,” went on to conclude in

language that is surely apt here, that, “the availability of

evidence including the validity and scope of privileges is

a judicial decision.” (360 F. Supp., at 5). Next, the Court,

relying on the Reynolds decision (deemed inapt to this

situation by our prosecutor), concluded that judicial con-

trol over evidence in a case “cannot be abdicated to the

caprice of executive [which of course, includes enforce-

ment] officers” (ibid.).

In further amplification of this point, it was then

stated, [Flor the courts to abdicate this role to the Presi-

dent or anyone else, to make each officer the judge of his

own privilege, would dishonor the genius of our consti-

tutional system and breed unbearable abuse.” (Id., at 5-6).

In approving this concept, the Court of Appeals rea-

soned (contrary to the position taken by the President that

his mere assertion of the privilege . . . [was sufficient

to overcome the need of the party subpoenaing the docu-

ments”]) that “the courts have repeatedly asserted that

the applicability of the privilege is in the end for them

and not the executive to decide.” (487 F.2d, at 713).

The upshot of these cases, including Reynolds, is that,

“the Court itself must determine whether the circum-

stances are appropriate for the claim of privilege.” (Id.,

at 714).

Given then the trial court’s refusal to require dis-

closure, even in the face of its apparent relevance to many

of the issues in this case; as well as, our strong showing of

need (a factor stressed in Nixon, 487 F.2d, at 717) there

does not appear to be any possible basis for approving the

trial judge’s thesis in this case—that is, that McComb

would not be required to disclose because he did not want

to.

At least this much is certain, the disclosure requested

here was essential both to a fair trial and to the integrity

of the verdict that has been returned. See United States

v. Hurse, 453 F.2d 128 (1972), and United States v. Jack-

son, 384 F.2d 825 (1967). In our judgment then, any one

of the flaws developed in this segment of the Petition fur-

nished a sufficient basis for a reversal. 1

Despite this, the Court of Appeals’ point in rejecting

the above argument must be that unless the defense can

show that an asserted informant was a participant in the

transactions involved in the trial his identity need not be

disclosed. Here, too, the Court has created a basis for

rejecting a defense argument that differs from that ex-

pressed by the trial court.

While no one can dispute the fact that it is proper to

look at all the facts and circumstances in resolving the

merits of an issue, still one is prone to feel he has been

ambushed when the trial court takes one position, which

is indefensible, and the Court of Appeals says he was right

but for different reasons.

However, in this case, Roviaro cannot be regarded as

the complete answer to these contentions. Also, it is not

the rule of Roviaro that disclosure is only required when

the informer was a participant.

A close reading of Roviaro and its progeny show that

the principle of nondisclosure of relevant evidence can-

not stand as a bar to the disclosure of relevant evidence

in a criminal cause. The case of Nixon v. Sirica, if it

stands for anything, certainly stands for this principle.

Thus, the question the appellate Court should have an-

swered, for itself at least, is how can it be said with im-

punity that “the only purpose the informant could have

served at trial would have been to impeach Officer Mc-

Comb’s testimony respecting the original lead in the case”

(Journal Entry, Appendix, p. All).

Obviously, the Court of Appeals chose to ignore the

fact that disclosure was sought in order to impeach not

only McComb on the merits, but Battle as well. Indeed,

one of the strongest arguments made during the trial for

disclosure dealt with our inability to cross examine Mc-

Comb about the statements he related to the jury that had

been told to him by the informant, which statements he

screened through the prosecutor and the judge (R 1945-

1949).

Given the Court’s failure to deal with the confronta-

tion facet of our contentions, the Court’s conclusion as to

the “only purpose” disclosure could have served seems

out of line with the facts of this case.

V. It Is a Violation of Due Process for the Court to

Resort to Disjunctive Language in Charging the

Jury Where Such Language Creates Affirmative

Theories Upon Which a Verdict of Guilt Could Be

Based.

Simpson was found “guilty as charged by the Judge”

of receiving, buying, operating, or concealing the motor

vehicles, particularized in two counts, with knowledge that

they were stolen. Of course, even a cursory reading of the

controlling statute reveals that one who either receives,

buys, operates, or conceals a motor vehicle with the req-

uisite knowledge commits a crime.

Stated another way, a crime is committed if any of

these alternatives is committed. Necessarily then, since

Simpson was charged in each of these counts with more

than one crime, it follows that he was substantially preju-

diced by the Court’s failure to properly segregate the

charges to the jury. Not having been properly instructed,

it is possible that some of the jurors may have concluded

that Simpson was guilty because he received the car

with the required knowledge, while those not so believing

could have concluded it was because he concealed it with

such knowledge. In such an event, guilt could, and very

probably was, determined on less than the required una-

nimity as to any of the particularized crimes charged.

This is especially so since in essence four crimes were

charged and obviously created other possibilities in addi-

tion to the ones suggested above.

Even as a general proposition it has been held that

two or more separate and distinct offenses cannot be

joined in a single count of an indictment. The vice of so

charging an accused is that of duplicity. Parker v. Mazx-

well, 174 Ohio St. 471 (1963) ; 28 Omo Jur. 2d 473.

Now admittedly, it has been deemed permissible, and

not duplicitous, where it is shown that the statute in-

volved prohibits the doing of an act in several different

ways, and the indictment charges these conjunctively with

having been committed by the accused. State v. Daniels,

169 Ohio St. 87 (1959). More specifically, in Crain v.

United States, 162 US. 625, this Court ruled that it could

perceive no sound reason, “why the doing of the prohibited

thing in each and all of the prohibited modes may not be

charged in one count, so that there may be a verdict of

guilt upon proof that the accused had done any one of the

things constituting a substantive crime under the statute.”

While we agree that it is not duplicitous where the

prohibitions are pleaded conjunctively, State v. Daniels,

supra (also see Kitchen v. United States, 272 F.2d 757, 751

[1959] ), a real problem necessarily must be deemed to have

been created where the disjunctive “or” is used in phrasing

the charges. Here, of course, direct reference is being

made to the fact that not only did the indictment use the

disjunctive “or”, the Court specifically charged the jury

that Simpson could be convicted if they were persuaded

that he “did receive or buy or conceal” the Cadillac. And

the same finding could be made if they determined he did

“receive, buy, or conceal or operate the Volkswagen (R

2710-2711), in this case (Emphasis supplied).

Again, the real crux of our position here is that the

Court’s charge does not simply set forth different modes

of committing the same offense, the charge sets forth at

least two different offenses. This necessarily follows even

if we concede that it is proper to charge that one violates

R. C. of Ohio, §4549.04(E) if he “receives, buys, and

operates” a stolen vehicle. Where, however, the jury is

charged, as was the case here, that guilt can be deemed

established if the accused either received, purchased, and

operated or if he concealed the stolen vehicle, there is

simply no way it can be ascertained from a general verdict

the crime the accused was convicted of. In Ackley v.

United States, 200 F.2d 217, at 221, the Court held that to

charge that a defendant did one thing or another makes

the indictment bad for uncertainty. Also see Wilborg v.

United States, 163 U.S. 632, 648. This case supports the

concept that although two charges were made in one

count, where the court charges the jury that the evidence

would justify a conviction on only a specified one of these,

the verdict would not be disturbed. The point in citing

this case is to emphasize the fact that counsel sought to

have the Court require the State to elect from among the

different charges (R 175). This the Court refused to do,

as a reading of the charge amply reveals.

The question then must be, especially since this was

done in spite of a defense request for specific clarification

of the charges, whether substantial nights of the accused

were breached.

Judging from the reception our argument that this in-

dictment was duplicitous (R 2667-2670) received at the trial

level, the danger does exist that our point is not being com-

prehended. On the other hand, the point being raised, at

least to some degree, was developed in United States v.

Thompson, 422 F.2d 1104 (1970). Here, the Court was

dealing with charges involving transporting a stolen motor

vehicle and concealing a motor vehicle.

These charges are comparable to concealing a stolen

car, operating a stolen car and purchasing a stolen car.

All are separate crimes. This being the case, each would

require the proof related specifically to the particular crime

to satisfy constitutional requirements. In Re Winship, 397

US. 358 (1972).

What this does then is dramatically expose the vice

involved in the mere submission of more than one charge

in a single count. And, of course, it makes the submission

of these alternatives an even greater wrong. This is so

since there is just no way one can determine precisely

which charge the jury, if they did, unanimously agreed he

was guilty of with reference to amy of the various counts

involved in this trial.

The response of the Court of Appeals to this argument

simply cannot survive any meaningful scrutiny. To begin

with, a careful reading of the Court of Appeals’ Journal

Entry shows they selectively segregated from the various

alternatives given the jury, certain facts and then reasoned,

in an ad hoc fashion that produces the following logic: (1)

that knowledgeable concealment of a stolen car both before

and after March 20, 1972, is a crime; (2) that although the

trial court instructed the jury that Simpson could be con-

victed if they found he had knowledge these cars were

stolen or even reasonable grounds to know this, and if he,

on or about October 27, 1972, either purchased, received or

concealed these cars. From these premises, the Court then

concluded that since there is sufficient evidence in the Rec-

ord to support Simpson’s conviction on the theory that he

concealed these cars with knowledge that they had been

stolen his conviction can be approved.

This syllogism, we contend, is plausible only on its

surface, because the Court’s premises do not justify the

ultimate conclusion reached. This is so for a number of

reasons. To begin with, the Court’s reasoning pattern can

be classified as a non sequitur. This is so because it does

not follow that because one can pick and choose from

amongst the alternatives given the jury, and select a course

that does not conflict with fundamental criteria that this

is what the jury did.

The Court also appears to have fallen into the logical

faliacy known as the fallacy of the undistributed middle.”

This is so because the Court’s conclusion does not ade-

quately deal with the shared middle premise. This premise

(No. 2 above) gave the jury options other than those ab-

solutely essential to the logical validity of the Court’s ulti-

mate conclusion. So structured, it could not be clearer,

the fact that the jury may have reasoned as the Court did

no more justifies the conclusion they did So than it sup-

ports the idea they selected one of the other alternatives.

Again, the Court says there is “sufficient evidence for

reasonable minds to conclude, as the jury did, that.

[Charles Simpson] was guilty of concealing the automo-

biles on October 27, 1972, knowing they were stolen”

(Journal Entry, Appendix, p. Alz).

Aside from the fact that the evidence showed his wife

purchased the Volkswagen without his participation, there

is the fact that no one can really say Simpson was con-

victed “of concealing” as distinguished from some of the

other alternatives given the jury. Here, of course, refer-

ence is being made to the fact that the Court instructed

the jury that Simpson could be convicted if they found that

he did receive or buy or conceal the Cadillac. This same

finding was authorized if they found that he did “receive,

buy or conceal or operate the Volkswagen” (R 2710-2711).

Since the jury was given these choices, how can it be real-

istically held that they must have convicted him of con-

cealing only.

The Court’s stated position is self-refuting. For given

“the presumption of regularity” the Ohio Supreme Court

attributes to the actions of trial judges (See Coleman v.

McGettrick, 2 Ohio St. 2d 177 [1965]), it has to be sup-

posed that the trial judge’s unwillingness to strike the al-

ternatives to concealing from the indictment, can only be

because he was convinced there was sufficient evidence in

the Record to support a conviction on those points as well.

If it were otherwise, the trial court, under Rule 29, Ohio

Rules of Criminal Procedure, would surely have eliminated

these alternatives.

VI. A Law Which Alters the Rules of Evidence So As

to Permit an Accused to Be Convicted Upon Less,

or Different, Evidence Than Was Required When

the Charged Crime Supposedly Was Committed

Is Invalid as Ex Post Facto.

More simply put, the contention here being made is

that it was a violation of due process to convict Charles

Simpson for violating a law that was not in existence on the

date the alleged criminal conduct in issue occurred.

As an example of what is here being contended, it

has been expressly held that a change from a rule requiring

corroboration of the testimony of an accomplice * ne

abolishing such requirement violates this prohibition.

Plachy v. State, 91 Tex. Crim. R. 405, 239 S.W. 979 (1922).

Still another facet is where there is a change from a rule

requiring conviction only on the direct evidence to one

allowing conviction on either direct or circumstantial evi-

dence. Such a change is ex post facto as to past offenses.

See State v. Johnson, 12 Minn. 476 (1867).

The fault characteristic in the above examples involves

retroactive changes which operate to the disadvantage

of the accused by making his conviction easier. Quite obvi-

ously then, it was for this reason that this Court, in

Thompson v. Missouri, 171 U.S. 380 (1898), concluded that

a statute which changes the burden of proof on the prose-

cution from the rule of beyond a reasonable doubt to one

of preponderance of the evidence is ex post facto if retro-

active. Also see Kring v. Missouri, 107 U.S. 221 (1883).

(Old law, in effect at time of offense, provided that on a

charge of first-degree murder a guilty plea of second-

degree murder operated as an acquittal of first-degree

murder, even if the plea is later set aside; new law passed

after offense, provided that if the plea is set aside, new

trial may be had for first-degree murder; held, ex post

facto, as the change deprives defendant of a substantial

right.) -

Of no mean significance then to the overall thrust of

this appeal is the indisputable fact that there was no evi-

dence showing either the receiving, or the operating, of

the Cadillac (Count II) after March 20, 1972. The State’s

evidence was designed to show Simpson received this car

from Battle (through Kaiser Houston) in early December,

1971, the day after Battle says he stole it (R 742, 748-750).

Petitioner’s evidence was that he made the purchase on

February 10, 1972 (R 2425).

The point of all this is that the statute then current

was R. C. of Ohio, $4549.04, which became effective on

March 20, 1972. This statute provided, so far as is relevant

here, that:

“No person shall receive, buy, operate, conceal, or dis-

pose of a motor vehicle that was obtained by means-of

an auto theft offense, knowing or having reasonable

cause to believe it to have been so obtained.” (Em-

phasis supplied. )

The statute repealed by the above enactment provided

that:

“No person shall commit any of the following acts:

(8) Purposely take, drive, or operate any motor

vehicle without the consent of its owner;

been stolen, knowing it to have been stolen (Em-

phasis supplied. )

The distinction between these two statutes results

from the fact that the old statute prohibited (insofar as is

relevant here) the purchase or concealment of a car “know-

ing it to have been stolen.” (Emphasis supplied). The

taen new statute, which repealed and replaced its prede-

cessor, enlarged the crime from “buy or conceal” a stolen

vehicle knowing it to be stolen, to “receive, buy, operate,

conceal or dispose” of a stolen vehicle. Not only this, the

new statute changed the standard from knowing the ve-

hicle was stolen to either knowing or “having reasonable

cause to believe” it was a stolen vehicle. It was on this

latter standard that the Court instructed the jury (R

2714).

Thus, the point here being made has at least two un-

deniably relevant features. Insofar as the charge, as par-

ticularized, included aspects other than purchase and con-

ceal it must be regarded as ex post facto. The same is

true of that facet of the Court’s charge which altered the

standard of persuasion from knowing the vehicle was stolen

to “reasonable cause to believe” it was stolen.

This is so because Simpson could not be constitu-

tionally convicted on the basis of acts allegedly committed

by him before the date the law under which he was prose-

cuted and convicted became effective. Nor could he be

convicted on the basis of a less rigid standard of proof than

existed at the time he committed, if he did, the acts charged

in this indictment.

The crucial question then is whether the retroactive

application of the successor statute, to acts attributed to

Charles Simpson, violates the constitutional prohibition

(U. S. Const. Art. I, §10) against ex post facto or retro-

active laws.

In fully assaying our position, it is beyond dispute that

the prohibition to which reference has been made includes

any law that alters the legal rules cf evidence, or receives

less, or different, testimony, than the law required at the

time of the commission of the alleged offense in order to

convict the alleged offender. See Calder v. Bull, 3 US.

(3 Dall) 386, at 390 (1798).

The clearest possible example of an ex post facto law

then would be one which creates a new crime and then

applies it retroactively to conduct not criminal at the time

it occurred. Obviously then this same result would apply

in a situation, like the one here, where the statutory

crime in existence at the time an alleged act was committed

required that it be done “knowingly,” and the require-

ments of the successor statute would be satisfied if it were

simply shown the person had reasonable cause to know.

This argument applies full strength to the Volkswagen.

Here, the charge was that Charles Simpson and his wife,

on the 27th of October, 1972, “did receive, buy, conceal or

operate” this car (R 2763). The evidence as to the pur-

chase of this car also showed Nancy Simpson both pur-

chased and acquired possession in September, 1971 *«R

2270, 2287-2288, and 665 et seq.).

This being the case, if she received this car with the

requisite knowledge it had to have occurred, at the latest,

on this date. Thus, any criminality involved in her having

done so has to be measured by the actual “knowledge”

feature in vogue at that time. To substitute reasonable

cause to believe for knowledge, as our Judge did, surely and

clearly violates the ex post facto prohibition.

Here, again, our Court of Appeals has taken a position

which, in our judgment, is unrealistic. This end they ac-

complished by stating the wrong questions and then giv-

ing what may very well be the right answers to such

questions.

Be all that as it may, the real question (the one that

supplies an undeniable flaw characteristic to the Court

of Appeals’ resolution of this specific contention) is not

whether there was sufficient evidence to support a con-

viction for “concealing the automobiles on October 27,

1972.” Rather, a more apt question is how can any Court

make the determination from the general verdict returned

in this case that the guilty verdicts were unanimously

predicated on concealing. And that the jury’s considera-

tion of the unconstitutional alternatives did not influence

them. (See Price v. Georgia, 398 U.S. 323 [1970].)

Stated still another way, how can it be concluded

from the general verdicts returned in this case that none of

the jurors were convinced Simpson was guilty because of

one of the other possibilities (i.e., other than concealing)

that were submitted to them. Further, how can it be said,

even if they found him guilty on the appellate Court’s con-

cealing theory, that this verdict was uninfluenced by the

inclusion of the constitutionally impermissible alternatives

that were likewise submitted to the jury.

All this, in our judgment at least, exposes the Court’s

view that Simpson was convicted solely on the basis of

concealing to not only be arbitrary, but illogical.

Even more specifically, and all that has been said here

is with full deference to the Court, in our judgment, the

Court of Appeals’ rejection of our ex post facto argument

suffers from the same infirmities as does the Court’s ratio-

cinations with reference to the duplicitous argument. And

for the same basic reasons, only more so.

Again, the Court’s argument is premised on the prop-

osition that a conviction for knowledgeable concealment

under the statute of March 20, 1972, would not be ex post

facto because that was a crime under the statute effective

before March 20, 1972”. As to this specific point, there

can be no dispute, and we offer none. But all this is

really beside the point, as is the fact that the Court’s

charge dealt with concealment in terms of the date October

27, 1972. :

The problem with the Court’s ad hoc reasoning pattern

is that it totally ignores the fact that the multiple-choice

charge permitted the jury to find Simpson guilty on the

theory that he “did receive or buy” the Cadillac; or if

he did “receive, buy . . . or operate” (R 2710-2711) the

Volkswagen. And, they were given the right to use the

reduced standard of proof—that is, “reasonable cause to

believe”.

So structured, the language of Stromberg v. California,

283 U.S. 359, 367-368 (1931), uttered in an analogous situa-

tion, seems compelling. Here, the Court stated:

“The verdict against the appellant was a general one.

It did not specify the grounds upon which it rested.

As there were three purposes set forth in the statute,

and the jury were instructed that their verdict might

be given with respect to any one of them, indepen-

dently considered, it is impossible to say under which

clause of the statute the conviction was obtained. If

any one of these clauses, which the state court has held

to be separable, was invalid, it cannot be determined

upon this record that the appellant was not convicted

under that clause. It may be added that this is far

from being a merely academic proposition as it appears,

upon an examination of the original record filed with

this Court, that the State’s attorney upon the trial

emphatically urged upon the jury that they could

convict the appellant under the first clause alone, with-

out regard to the other clauses. It follows that instead

of its being permissible to hold, with the state court,

that the verdict could be sustained if any one of the

clauses of the statute were found to be valid, the neces-

sary conclusion from the manner in which the case was

sent to the jury is that, if any of the clauses in ques-

tion is invalid under the Federal Constitution, the con-

viction cannot be upheld.” (Emphasis added.)

If the above quote from Stromberg, which reversed

a state court conviction, is not dispositive of this issue in

the Petitioner’s favor; then consider the case of Leary v.

United States, 395 U.S. 31, at 30-32 (1969).

In Leary, this Court was dealing with two alternative

theories which were submitted to the jury as a basis for

Leary’s conviction. One of these alternatives permitted the

jury to rely on an unconstitutional presumption; hence, a

conviction on that theory would be invalid. In Leary,

the Court reasoned with the following cogent language:

“Under the second or ‘North-South’ theory, the con-

viction would have depended partly upon petitioner’s

testimony that he had transported the marihuana from

New York to Texas and partly upon the challenged

presumption.

the Government contends that by giving testi-

mony at trial which established all elements of the

offense under the ‘South-North’ theory, and by failing

to object to the jury instructions on the ground now

advanced, petitioner foreclosed himself from raising

the point thereafter. We cannot agree. Even as-

suming that petitioner’s testimony did supply all the

evidence required for a valid conviction under the

‘South-North’ theory, the jury nevertheless was told

that it could alternatively convict with the aid of the

presumption under the ‘North-South’ theory. For

all we know, the conviction did rest on that ground.

It has long been settled that when a case is submitted to

the jury on alternative theories, the unconstitutionality

of any of the theories requires that the conviction be

set aside.” (ibid.) (Emphasis added.) -

Since a segment of the instructions was not valid,

as was the case in Stromberg, the conviction here must be

viewed as invalid.

The Court’s suggestion that the defense failed to ob-

ject to the Court’s instruction on the ex post facto theory

must, of course, bear the weight of the objections made

to the Court to withdraw these alternatives because evi-

dence was insufficient to support a conviction that Simpson

violated the statute as particularized in the indictment.

Further, there was our specific complaint over the trial

court’s unwillingness to eliminate the disjunctive aspects

of the charges.

But even apart from that, surely one cannot even con-

sent to be convicted on an unconstitutional charge.

VII. It Is a Violation of Due Process to Instruct the

Jury That One Can Be Convicted of Committing

One Offense Upon Proof He Committed Another

Distinctly Different Offense.

In this case, the Court, over defense objections, in-

structed the jury the petitioner could be convicted if they

were satisfied he “intentionally hid or put out of sight,

or disassembled, or disguised or did any other act to keep

the vehicle out of sight to avoid its being observed”

(R 2714). Since there was no evidence, absolutely none,

that this car was ever “hid or put out of sight, or disas-

sembled” in the sense of the statute prohibiting conceal-

ment, the only effect of this charge is that it authorized

the jury to convict if they were satisfied petitioner “dis-

guised” this vehicle.

Stated another way, the Court’s indication in its defi-

nition of “conceal” equated this with disguise. The de-

fense objected to this innovation (R 2733). Thus, this

instruction cannot survive the simple recognition that had

the Legislature intended the crime of concealing a motor

vehicle to be synonymous with that of buying, selling, dis-

posing of, concealing, or having in one’s possession a mo-

tor vehicle with a concealed identity (R. C. of Ohio,

§4549.07), there would have been no need for this latter

statute, and it would have been repealed along with the

predecessor to R. C. of Ohio, §4549.04.

Thus, we contend (the position of the Court of Ap-

peals to the contrary notwithstanding) that the trial

Court’s instruction, to which reference has been made

(R 2733), constituted a prejudicial misdirection within

the meaning of R. C. of Ohio, §2945.83. Given this prem-

ise, it necessarily follows that the contention made here

must be reckoned within favor of reversal. This is so for

the very simple reason that it surely must be a violation

of due process to instruct a jury (as was done here) that

one can be convicted of one crime on the basis of proof

that he committed a different crime.

CONCLUSION

The conviction of Charles Simpson, on the basis of

the record in this case, although startling, must truly be

regarded as a tragedy. For, surely it must be that our

concepts of due process still recognize the fact that a fair

and full cross examination to develop facts in issue or

relevant to the issue is a matter of absolute right and is

not a mere privilege to be exercised in the sound discre-

tion of the presiding judge. If this is so, then this Court

will recognize that Simpson’s right of confrontation (—that

is, his right to effectively cross examine, and his entitle-

ment to all relevant evidence) was sufficient to overcome

any legitimate state interest in preserving the confidential-

ity of a possibly phantom informer.

Given further the undeniable fact that privileges of

this nature are limited by those principles of fundamental

fairness, there simply does not surface here any realistic

basis for ratifying, or otherwise validating, the actions

either of the prosecutor or the courts below.

The same is true of the trial court’s unwillingness to

allow counsel to study the statements and the video tape

of the witness’ interview with the police. As to this,

simply to allow counsel to hear the Court read the state-

ment aloud (once) and to hear and see the video tape

(once) does not comport with the requirements of due

process.

For these and all of the other reasons in this case,

corrective action is required of this Court. Final judg-

ment for the petitioner is, of course, our ultimate re-

quest. If not this, then surely a new trial is at least re-

quired.

Respectfully submitted,

JAMES R. WILLIS, Esa.

1212 Bond Court Building

1300 East Ninth Street

Cleveland, Ohio 44114

216/523-1100

Attorney for Petitioner

APPENDIX A

Order of the Supreme Court of Ohio Denying Motion

for Leave to Appeal

(Dated October 16, 1975)

No. 75-816

THE SUPREME COURT OF THE STATE OF OHIO

THe STaTe or Omo, Crry or COLUMBUS.

1975 Term

To wit: October 16, 1975

STATE OF OHIO,

MOTION FOR LEAVE TO APPEAL FROM THE COURT

OF APPEALS FOR CUYAHOGA COUNTY

It is ordered by the Court that this motion is over-

ruled.

APPENDIX B

Order of the Supreme Court of Ohio Dismissing Appeal

(Dated October 16, 1975)

No. 75-816

THE SUPREME COURT OF OHIO

Tue Srarꝝ or Omo, City or COLUMBUs.

1975 Term

To wit: October 16, 1975

STATE OF OHIO,

Appellee,

APPEAL FROM THE COURT OF APPEALS FOR

CUYAHOGA COUNTY

This cause, here on appeal as of right from the Court

of Appeals for Cuyahoga County, was heard in the man-

ner prescribed by law, and, no motion to dismiss such ap-

peal having been filed, the Court sua sponte dismisses the

appeal for the reason that no substantial constitutional

question exists herein.

APPENDIX C

Opinion and Journal Entry of the Court of Appeals

of Cuyahoga County, Ohio

(Dated June 12, 1975)

No. 33506

COURT OF APPEALS OF OHIO, EIGHTH DISTRICT

County or CUYAHOGA

STATE OF OHIO,

Plaintiff-Appellee

Vs.

CHARLES SIMPSON

Defendant-Appellant

Appeal From Common Pleas Court

No. 6859 & 6860 Cr.

JOURNAL ENTRY

This cause came on to be heard upon the pleadings and

the transcript of the evidence and the record in the Com-

mon Pleas Court, and was argued by counsel for the par-

ties; and upon consideration, the court finds no error prej-

udicial to the appellant and therefore the judgment of the

Common Pleas Court is affirmed. Each assignment of

error was reviewed and upon review the following disposi-

tion made:

On October 10, 1972, the Cleveland Police Department

Automobile Investigation Unit received i:formation from

an undisclosed informant that the defendant Charles Simp-

son and others were operating an auto theft ring (Tr. 12-

14). The ring’s operation involved the purchase of

wrecked automobiles from salvage yards (cf. Tr. 15-17,

343-347, 508-524). The certificates of title from these cars

were then used as proof of ownership of stolen cars with

the vehicle identification numbers of the stolen cars being

altered to match the wrecked cars. If the description of

the wrecked and stolen cars did not match, the stolen car

was altered to seem to conform to model and model year

(Tr. 1919-1934, 1966-1979).

Based on the “tip”, the police made an independent

investigation with the Ohio Title Bureau and National Auto

Theft Bureau in Chicago. This investigation disclosed that

Charles Simpson had title in his name to a 1971 Cadillac

and his wife had title to a VolksWagen (cf. Tr. 14-31, 15,

16). The physical description of the VW matched the

description of a VW recently reported stolen in Cleveland

(Tr. 32-33, 37-39). Although there was no report of a

stolen 1971 Cadillac, the Cadillac driven by Charles Simp-

son did not match the description it should have had if the

title certificate was correct (cf. Tr. 21 with 24; Tr. 134-135).

Officer McComb, who was in charge of the investiga-

tion, reported his findings to the County Prosecutor. To-

gether they presented them to a judge of the Common

Pleas Court on October 27, 1972, in the form of an affidavit

requesting a search warrant be issued for the VW. After

additional sworn testimony, not recorded and not in the

record, was presented to the judge, a search warrant for

the VW issued.

The VW was seized and impounded. Earlier investi-

gation of the reported stolen VW revealed that its owner,

cautious of auto theft, placed slips of paper with his name

and address in each of the door panels of the auto (Tr. 38).

After the seized VW was removed to a police lot, the in-

terior panels of each door were removed. Found inside

were slips of paper bearing the name and address of the

owner of the reported stolen VW (Tr. 44-45).

Officer McComb and the Prosecutor then returned to

the judge who had issued the initial search warrant for the

VW. Information concerning the search of the VW was

reported to the judge who issued a second warrant for the

Cadillac (Tr. 50). The Cadillac was seized at Defendant

Simpson’s home in Cleveland Heights (Tr. 51) on October

27, 1972.

On December 12, 1972, the grand jury returned two

indictments against Charles Simpson. The first count

of the first indictment charged violation of Ohio Revised

Code 4505.19(D), selling an auto with altered identification

numbers (a Camero sold by Charles Simpson on May 1,

1972). The second count charged violation of Ohio Re-

vised Code 4549.04(E), comcealing a stolen motor vehicle

(the Cadillac). In the second indictment Charles Simpson

was co-indicted with his wife for a second violation of

Ohio Revised Code 4549.04(E) (the VW).

Both indictments against Charles Simpson were con-

solidated but a motion for severance was granted as to the

second, joint, indictment with Mrs. Simpson as co-defen-

dant. A motion to suppress, challenging the search war-

rants, was made and heard prior to trial. The motion was

denied. On trial the jury found Charles Simpson guilty as

to all counts.

Defendant assigns twenty-eight errors. However, he

has formulated ten arguments which encompass his com-

plaints. Accordingly, we treat those ten as defendant’s

assignments of error:

„J. An affidavit for a search warrant which makes

“TT,

“TTT.

“TV.

VI.

no effort to show the source of an undisclosed

informant's conclusions, or to demonstrate that

he is credible or his information otherwise re-

liable cannot support the issuance of a search

warrant for the seizure of a motor vehicle as

stolen property. |

An intentional or recklessly untruthful mis-

representation will result in an invalidation of a

warrant, as will an unintentional misrepresen-

tation, or a willfully deceptive representation of

a material issue of fact.

The right of confrontation and the hearsay rule

are both violated when a crucial witness is al-

lowed to relate as substantive evidence the con-

tents of conversations had with an undisclosed

informant, and with others—including a Judge

and the County Prosecutor.

Disclosure of the identity of an alleged in-

formant is required where it appears necessary

(1) to avoid the risk of false testimony, (2) to

secure useful testimony, or (3) it is essential to

a fair determination of a cause of issue.

Given the right to impeach a witness by showing

prior inconsistent statements, counsel must be

given sufficient latitude to lay a proper founda-

tion.

Where the probative value of any proffered evi-

dence is severely outweighed by its prejudicial

aspects, due process requires that it be ex-

cluded.

“VII. Where an indictment charges that a motor ve-

hicle owned by a specifically designated per-

son, or entity, was unlawfully received, pur-

chased, or concealed, proof that the certificate

of title listed another and different person as

owner, on the crucial date alleged, affords a

sufficient basis for voiding such conviction.

“VIII. Due process is violated where the court resorts

to disjunctive language in charging a jury.

“IX. A law which alters the rules of evidence so

as to permit an accused to be convicted upon

less or different evidence than was required

when the charged crime supposedly was com-

mitted is invalid as ex post facto.

“X. Given statutory prohibitions against ‘conceal-

ing’ a stolen vehicle and against buying, sell-

ing, disposing of, concealing or having in one’s

possession a motor vehicle with a concealed

identity, it is a violation of due process to in-

struct the jury that one can be convicted of

committing one offense upon proof he com-

mitted another distinctly different offense.”

For reasons assessed below we find none of the as-

signments well taken.

Argument No. I:

“An affidavit for a search warrant which makes no ef-

fort to show the source of an undisclosed informant’s

conclusions, or to demonstrate that he is credible or

his information otherwise reliable cannot support the

issuance of a search warrant for the seizure of a motor

vehicle as stolen property.”

Defendant argues that the search warrant issued for

the VolksWagen fails the two-prong test of Aguilar v.

Texas (1964), 378 U.S. 108, 12 L. Ed. 2d 723 and Spinelli

v. United States (1969), 393 U.S. 410, 21 L. Ed. 2d 687.

Those cases deal with probable cause established from in-

formation supplied by an undisclosed informant. In the

initial search warrant issued in the instant case, probable

cause was established from information supplied by the

affiant from his own knowledge irrespective of any addi-

tional allegation in the search warrant attributed to an

undisclosed informant. The police had to start some-

where. There is no constitutional infirmity in police

simply investigating tips or even acting on suspicion.

“Corroboration through other sources of information

reduced the chances of a reckless or prevaricating

tale. United States v. Harris (1971), 403 U.S.

573 at 581, 29 L. Ed. 2d 723 at 732 quoting Jones v.

United States (1960), 362 U.S. 257, 4 L. Ed. 2d 697.

On the basis of the tip in the present case police checked

records and determined that an automobile did not match

the description reasonably to be expected if the car was

in fact legally obtained. Further, the alleged date of pur-

chase of the automobile was near the date of a reported

stolen vehicle which matched the description of the car.

All this information was in the personal knowledge of the

affiant and not based on hearsay.

The search warrant for the Cadillac poses a different

question which does not activate Aguilar and Spinelli

principles. The underlying facts and circumstances pre-

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