Petitioners Brief — Doyle v. Ohio

IN THE aed ——

Supreme Court of the Gnited States Me |

OCTOBER TERM, 1975!

NOV 24 1975

Nos. 75-5014 & 75-5015 * wourer pone. IR. CLIR

-_—-—

JEFFERSON DOYLE,

Petitioner,

v.

STATE OF OHIO,

Respondent;

and

RICHARD WOOD,

Petitioner,

v.

STATE OF OHIO,

Respondent.

ON WRITS OF CERTIORARI TO THE COURT OF

APPEALS OF OHIO TUSCARAWAS COUNTY

BRIEF FOR THE PETITIONERS

JAMES R. WILLIS, ESQ.

1212 Bond Court Building

1300 East Ninth Street

Cleveland, Ohio 44114

216/523-1100

Attorney for Petitioners

_ sneer

Washington, .C. © CLS PUBLISHERS © LAW PRINTING CO. « (202) 393-0625

(i)

TABLE OF CONTENTS

Page

ee eee eseb acd 0058 Cee6en l

Ne ee cee eck adhe ba akeee en 2

GPE ck cccccciesecsccesetes 2

CONSTITUTIONAL AND STATUTORY PROVISIONS .... 3

ES ccc ce cccceuvsessesese 5

SS Gl IE, ccc cesses ccccesccessecs 19

ARGUMENT:

I. THE ASSERTION OF A _ CONSTITU-

TIONAL PRIVILEGE OR RIGHT IS NOT

PROPERLY PART OF THE EVIDENCE TO

BE CONSIDERED BY THE JURY, AND

NO INFERENCE CAN BE _ LEGITi-

MATE'Y URGED UPON, OR DRAWN BY,

THE JSURY AS A CONSEQUENCE OF

EITHER THEIR HAVING’ BEEN

ASSERTED BY THE ACCUSED OR A

ee a eee eennes 20

Se ete e sh ehh bee OMAN eeheee Kes 31

A ee ee CE eee ekeeeetes 31

TABLE OF AUTHORITIES

Cases:

Fagundes v. United States, 340 F.2d 674 (1965) ......... 27

Fowle v. United States, 410 F.2d 48 (1969) ............ 27

Gillison v. United States, 399 F.2d 586 (1968) .......... 28

Griffin v. California, 380 U.S. 609 (1965) .......... 23, 26

Grunewald v. United States, 353 U.S. 391 (1957) ........ 26

Harris v. New York, 401 U.S. 222 (1971) __. . 21, 23, 25, 26, 27

Johnson v. Patterson, 475 F.2d 1066 (1975) ........... 26

Johnson v. United States, 318 U.S. 189 (1943) .......... 29

(ii)

Page

McCarthy v. United States, 25 F.2d 298 (1928) ......... 77

Miranda v. Arizona, 384 U.S. 436 (1966) ...... 21, 25, 27, 28

People v. Storr, 527 P.2d 878 (Colo. 1974) ........... “30

State v. Davis, 10 Ohio St.2d 136 (1967) .......-.-..4.-. 21

State v. Minamyer, 12 Ohio St.2d 67 (1967) ........ 21,22

State v. Stephens, 24 Ohio St.2d 76(1970) ...... 21, 22, 26

United States v. Hale, 498 F.2d 1038 (1974) ........ 25, 31

United States v. Hale, ne. éeseedeeun 23

United States v. LaVellee, 471 F.2d 123 (1972) ......... 28

United States v. McKinney, 379 F.2d 259 (1967) ..... 27-28

United States v. Nolan, 416 F.2d 588 (1969) ........ 26, 29

United States v. Ramirez, 441 F.2d 950 (1971) ........ 28

United States v. Russell, 332 F.Supp. 41 (1971) ........ 28

United States ex rel. Burt v. New Jersey, 475 F.2d

SE ce cach Ceee 6 eRES oN HOES ORS eOR 28

United States ex rel. Macon v. Yeager, 476 F.2d

CE nub bis ud Ce SSR EGNOS ORS COKEEES 27

Constitutional Provisions:

Constitution of the United States:

ND ooo eecheceseeeteteaseueseeens 3

CT ci ceck pcb cdannasadoeneseede xs 3

SM dé eeceehaseee renee bessanss 4

Statutes:

Revised Code of Ohio, Section 2937.11 ............. 4, 21

Revised Code of Ohio, Section 2937.12 ............ 45,21

Revised Code of Ohio, Section 3719.44(D) ............. 5

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1975

Nos. 75-5014 & 75-5015

JEFFERSON DOYLE,

Petitioner,

v.

STATE OF OHIO,

Respondent;

and

RICHARD WOOD,

Petitioner,

v.

STATE OF OHIO,

Respondent.

ON WRITS OF CERTIORARI TO THE COURT OF

APPEALS OF OHIO TUSCARAWAS COUNTY

BRIEF FOR THE PETITIONERS

OPINIONS BELOW

The judgment entries of the Supreme Court of Ohio,

denying further appellate review are incorporated in the

2

Appendix at pages 67 and 69. The entries filed by the

Court of Appeals of Ohio, Tuscarawas County, the

judgments under review here, appear at pages 49 to 57,

and 58 to 66, of the Appendix. The Tuscarawas County

Common Pleas Court entries appear at pages 44 and 46

of the Appendix.

STATEMENT OF THE GROUNDS ON

WHICH THE JURISDICTION OF THIS

COURT IS INVOKED

The judgment of the Supreme Court of Ohio was

entered on April 11, 1975. The petitions for writ of

certiorari were filed on July 2, 1975, and were granted

October 6, 1975. The jurisdiction of this Court was

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 PRESENTED

1) Whether an accused who asserts his right of

silence and his right to counsel following his

arrest properly subjects himself:

a) to questions as to why he did not protest

his innocence at the point of arrest, at the

preliminary hearing, or at some time

earlier than at the trial;

b) to the prosecutor’s argument to the jury

that an unfavorable inference could be

drawn against the accused as a conse-

quence of his having exercised these

constitutional rights;

3

c) to questions as to why he did not consent

to the search of the car (thus necessitating

obtaining a search warrant) and to an

argument on this point.

2) Whether a defense witness who was arrested

and charged along with the defendant on trial

can be properly asked why he did not protest

his innocence earlier than at the trial, and can

the prosecutor argue this point to the jury?

CONSTITUTIONAL AND

STATUTORY PROVISIONS

Constitution of the United States, Amendment IV:

“The right of the people to be secure in 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 person or things to be seized.”

Amendment V:

“No person shall be held to answer for a

capital or otherwise infamous crime, unless on a

presentment or indictment 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.”

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.”

Ohio Revised Code, Section 2937.11

“At the preliminary hearing, pursuant to

section 2937.10 of the Revised Code, the

prosecutor may, but shall not be required to,

state orally the case for the state, and shall then

proceed to examine witnesses and introduce

exhibits for the state, under the rules of evidence

prevailing in criminal trials generally, the accused

and the magistrate having full right of cross

examination and the accused the right of

inspection of exhibits prior to their introduction.

On motion of either the state or the accused,

witnesses shall be separated and not permitted in

the hearing room except when called to testify.”

Ohio Revised Code, Section 2937.12

“(A) At the conclusion of the presentation of

the state’s case accused may move for discharge

for failure of proof or may offer evidence on his

own behalf. Prior to the offering of evidence on

behalf of the accused, unless accused is then

represented by counsel, the court or magistrate

shall advise the accused:

(1) That any testimony of witnesses offered

by him in the proceeding may, if unfavorable in

any particular, be used against him at later trial;

5

(2) That accused himself may make a

statement, not under oath, regarding the charge,

for the purpose of explaining the facts in

evidence;

(3) That he may refuse to make any

statement and such refusal may not be used

against him at trials;

(4) That any statement he makes may be

used against him at trial.

Ohio Revised Code, Section 3719.44(D):

“No person shall sell, barter, exchange, or

give away, or make offer there.or, any hallu-

cinogen except in accordance with sections

3719.40 to 3719.49, inclusive, of the Revised

Code.”

STATEMENT OF THE CASE

Jefferson Doyle and Richard Wood, the petitioners

herein, were convicted in the Common Pleas Court of

Tuscarawas County, Ohio, and were sentenced to the

penitentiary for the sale of marijuana in violation of

R.C. of Ohio, §3719.44(D). These convictions were

separately appealed to the Ohio Court of Appeals,

Tuscarawas County, where they were affirmed.

The Ohio Supreme Court denied further appellate

review to both petitioners.

The basic facts as developed in the separate trials of

Doyle and Wood are pretty consistent. In essence, Bill

6

Bonnell, a convicted felon, with a record consisting of

convictions for first degree rioting (R227); grand

larceny (R228) five or six assault and battery cases

(R256); and numerous convictions for disorderly

conduct (R2 56), testified that he bought a quantity of

marijuana from Jefferson Doyle.

In short, the State’s case was absolutely dependent

upon the testimony of Bill Bonnell. As such, his

veracity and the ulterior motives behind his actions

were extremely important. He had been sentenced to

the Ohio Penitentiary, and was desperate to do

anything to get out—even turn in his childhood friends

(R2 64) in his efforts to induce the officers to come

forward in his behalf at his probation hearing which

was then pending (R2 32,65,66). Bonnell also admitted

that he would not have testified in these cases but for

the threat of prosecution, for the additional crimes he

had committed, if he failed to do so (R2 69-71).

In a _ nutshell, Bonnell testified that he was

contacted by Jefferson Doyle and they agreed to meet

in Dover, Ohio, where a transaction involving ten

pounds of marijuana was to be consummated. In

anticipation of Doyle’s arrival, Bonnell contacted the

multi-county Narcotics Bureau. They, in turn, contacted

the local police and various surveillance teams were set

up. When Doyle came to Dover, Richard Wood was

with him (R241). Even Bonnell conceded he did not

know Wood would be with Doyle (R2 41).

* References are indicated as follows:

To the numbered pages of the Transcript of Proceedings in

the Doyle trial (R1 —).

To the numbered pages of the Transcript of Proceedings in

the Wood trial (R2 —).

To the numbered pages of the Transcript of Hearing on

Pretrial Motions (M —).

To the Appendix (A —).

7

Bonnell testified that after his conversations with

Doyle in Dover, Wood rode with him in his truck.

Doyle, he testified, in the meantime, went for the drugs

(R2 42). They ended up in the area behind the 224

Club, in New Philadelphia, Ohio (Dover and New

Philadelphia are twin cities). Here the transfer sup-

posedly took place.

On cross examination Bonnell denied that he had

staged this entire episode. In this regard, this witness

specifically denied that he had tried to sell Doyle the

marijuana he later turned over the the police (R2 79),

and he denied having thrown the money in the car then

being driven by Doyle (R2 80).

The overall importance of Bonnell’s testimony

centers upon the fact that he was the only person other

than Jefferson Doyle and Richard Wood who was

present during the alleged transaction. None of the

officers who testified, save Captain Griffin, even

asserted that they had seen any transfer take place.

Specifically, Kenneth Beamer—the agent in charge of

the surveillance—testified that he did not see the actual

transfer or even the bag (allegedly containing the

marijuana) under Bonnell’s arm until after the alleged

transaction had taken place (R2 155). Although Beamer

testified that Detective Hobert White and Captain

Griffin had told him that they had observed the

transfer (M 20); Detective White testified he did not see

any transfer (R2 210, M 80-83). All he [White] could

really see was that something was already under

Bonnell’s arm when they arrived (R2 241, M61).

Further, he denied having told Beamer that he had seen

the alleged transaction. More specifically, White stated

that what he told Beamer was that when they arrived

Bonnell was already standing beside Doyle’s vehicle

with a package under his arm (M 67,83).

8

As to Captain Griffin, although he could not see the

alleged transfer when he testified at the preliminary

hearing (R2 289,290), at trial he indicated that he had

done so (R2 266). This he maintained despite being 200

feet away in the middle of the night, a feat that would

have entailed his looking into this deserted parking lot

that was surrounded by foliage. Consequently, the

credibility given Captain Griffin must be viewed in light

of the glaring inconsistencies in the versions he

proffered while under oath at different stages of the

trial.

7 Ill

-

For his defense, Richard Wood (whose case was

tried first) testified to facts showing his presence in

both Dover and New Philadelphia was most fortuitous.

He was at a bar in Akron, Ohio, when Vince Cercone

and Jefferson Doyle came in. Upon being queried by

Jeff Doyle as to his plans for the evening, Wood

revealed he was going to Steubenville, Ohio, to see his

daughter. Doyle then asked him if he could ride as far

as New Philadelphia with him. Wood says he picked up

a few personal items and a change of clothes, and Jeff

picked up his wife. The plan was that he would drop

Doyle and his wife off at Doyle’s sister’s in

Sherrodsville and pick them up on the way back

(R2 439-440).

Wood next testified that Doyle, after they dropped

his wife off, indicated he wanted to go into town to see

Bonnell (R2 440). This then brought them to Dover

and to the two bars.

Inside these bars Wood says he was just “goofing

off.” He had a “‘couple of drinks or two” while Doyle

and Bonnell talked (R2 441). A point was reached

9

where “Jeff [Doyle] said he had to go to his sister’s or

he had to go some place and wanted to know if he

[Wood] was going along or would stay there”

(R2 441).

Wood testified that his first response was that he

would stay there at the bar. It was at this point Bonnell

stated that he was going to meet Doyle, and told Wood

to ride with him (ibid). They eventually ended up in

the lot behind the 224 Club in New Philadelphia

(R2 442), where Doyle pulled in beside them. Bonnell

got out of his pickup truck, and was out of his view for

“a couple of minutes” (ibid).

When he saw Bonnell coming back, Wood says he

got out of the truck and returned to his car. As he

opened the car, the interior light showed the money on

the back seat. This prompted him to ask Jeff about it.

Following this, they started chasing Bonnell (R2 443).

Jefferson Doyle, in testifying as a defense witness in

the Wood trial, showed that he was in the Akron bar,

when he overheard Vince Cercone mention that Bonnell

was dealing in drugs (R2 376). He then decided to get

in touch with Bonnell, whose number was obtained

through a common acquaintance (R2 377-378).

He recalled telling Wood that, “if you are going

down to Steubenville [Ohio], how about taking me and

my wife along and drop us off at my sister’s house”’ [in

Sharodsville, Ohio, a small town near Dover-New

Philadelphia] (R2 379). With this plan set, Doyle called

Bonnell, and asked could they get together and do

some business. They agreed to meet in Dover

(R2 379-380).

Doyle stated he told Bonnell that he did not want

Wood to know what they were talking about, because

he [Doyle] “knew Woody wouldn’t approve” (R2 383).

In any event, Bonnell was asked if he [Bonnell] had

10

any “grass for sale” (R2384). Doyle indicated to

Bonnell that he wanted to buy about two pounds of

marijuana, but Bonnell wanted to sell him 10 pounds

for $1,000.

Doyle testified his first inclination was that he

could raise the money with what he had, what he felt

he could get from his sister, and from Woody

(R2 384-385).

With that thought in mind, he “took off” for his

sister’s house (R2 386). After he had gotten two or

three miles out of town he changed his mind and

started back to the 224 Club (R2 383). Here the record

shows the following crucial evidence:

A When I pulled into the Club I * * * flashed

my lights so Bill would know it was me * * *

and Bill came over to the car with the

marijuana and he asked me for the money. I

said Bill I hate to tell you this but I can’t do

it right now — I can’t get the money

together. If you want to wait a couple days

and give me the time to think about it maybe

I can. He said, doggone it Doyle, you made a

deal to come and I stuck my neck out and

I’m here. I said I can’t help it, | don’t want

to do it now. I said I'll buy a pound. I can

borrow money off Woody. He said you didn’t

want Woody to know about it. I said I'll go

to the truck and ask him for a loan. He’ll give

it to me. I’m sure he will. I don’t want to use

the word he said.

He used profanity?

> ©

Yes, and he said profanity and walked away

and got in his truck and Woody got out of

the truck and came and got in the car.

Q Anything said when Woody got in the car?

He said where did the money come from?

Where was the money?

In the back seat of the car. I said I don’t

know. He said he don’t know. Where did it

come from.

Q Did he say anything about Bonnell throwing

something into the car?

THE COURT: Let the witness testify.

THE PROSECUTOR: I am interested in

hearing it.

Q Go ahead, Mr. Doyle.

A_ I think he said — what’s that in the car in the

back seat and I tumed and looked in the

back seat and there was money scattered all

over the back seat.

Q Then what happened?

A

He jumped in the car. I said I don’t know. He

said did Bill throw that in there? I said I

don’t know.

What did you do after having seen the money

in the car?

I said I didn’t throw it in there.

What did you do?

I said Bonnell must have threw it in there.

Woody said that son-of- - - - - is trying to

frame us or set us up or something that is

what he said and I took off to chase after Bill

Bonnell.

Q_ Did you chase Bill Bonnell?

A Yes, sir (R2 388-389).

During the cross examination of Doyle (as a witness

in the Wood trial) he was asked with the court’s

approval why didn’t he tell the police Bonnell had set

> OD >

> OPr A

12

him up (A 23), and why didn’t he “find it in... [his]

heart” to tell the officers his version of these events

(A 23-24). Also, Doyle was asked if he made a

statement following his arrest (A 25-26), and ““wouldn’t

that have been a marvelous time to protest... [his]

innocence” (A 26).

As to all these questions, objections were overruled

by the Court, as were various motions for a mistrial.

IV

In his own defense, Doyle again testified to seeing

Vince Cercone in Akron, and hearing him mention that

Bonnell was dealing in marijuana (R1 465). He repeated

his conversation with Wood and about the arrangements

made to drop Doyle and his family off in Sherrodsville

(R1 467-469).

He reiterated as to how Bonnell was contacted, and

he explained that he had asked Bonnell to make a sale

to him. According to Doyle this was the purpose for

which they agreed to meet in Dover.

In explaining his conversation with Bonnell in

Dover, the following testimony was rendered:

A_ I started talking to Bill and I — about buying

some marijuana and he said he had some. I

asked him how much, and he said it was

$175.00 a pound. If I’d take them all, he’d

make me a deal. I| believe his first offer was

$1200.00 for all of them and I thought about

it, then he said maybe he could even do it for

$1000.00, and I said, —‘I don’t know if I can

get the money.” He said — ‘Well, what can

you come up with?’ I said, — ‘I got to go out

QO

>

>

QO >

13

and see how much money my wife had’ and I

was figuring then she had about $130.00 or

$140.00. I had Forty some dollars on me and

I knew that Woody had some money on him,

and I knew that if I asked for it, Woody

would trust me to loan it to me because he

knows I’d pay him back.

Do you know how much money Woody had

on him?

1 don’t know exactly but I knew it was right

around $1-,000.00.

Then what happened?

*

I was going to go out to my sister’s house to

see if I could get the money to but all ten

pounds. I started out to my sister’s. I told

Bill, you know, — ‘Where can we meet later?’

Bill said, — I said, — ‘Do you want me to

come back here?’ He said, — ‘No, I'll meet

you behind Club 224.’ I said, — ‘Okay.’ So I

started out to my sister’s and I got to

thinking, —‘What am I going to do with it?’

—you know, with that much marijuana.

*

“So when you came to Dover, you were

looking for some marijuana to smoke. Is that

right?

Yes, sir.

Now, after, you say that you went out to see

if you could get your money at your sister’s

house, what happened at that point, when

you started out to your sister’s house?

I didn’t know what I was going to do with

that much marijuana.

What happened?

14

A I changed my mind and decided to go back

and see if I could buy one pound.

Q Then what happened?

A_ I tumed around and came back.

Q Came back into New Philadelphia?

A Yes Sir.

** *

Q Tell us what happened when you got back in

behind the Club?

A I was sort-of scared and I was looking around

and didn’t see nobody and Bill came up to

the side of my truck, - or my car, — He came

from his truck up to the side of my car and

he said, — ‘Did you get the money%’, and I

said, — ‘I can’t get that much money but I

only want to buy one pound.’ He said, —

‘Why did you tell me you wanted it all?’ I

said, — ‘Well, I wanted it all but I don’t know

what I’m going to do with it and I don’t

know anybody to get rid of that much to.’

He said, — I believe he got upset about it

because he said he didn’t want — if I only

wanted one pound, why didn’t I say so, so

he’d only brought one pound. Something of

that nature. That’s how the conversation

went. I can’t say word for word because I

was nervous at the time.

** *

Q At that point, when you indicated to him

you only wanted to buy less than all of this,

what did he do? Mr. Bonnell?

A He said, — “Forget it.” He said something

else. He was pretty upset about it. Then he

went around and got back in his truck.

Q Incidentally, was the window down on your

car?

15

A Yes.

Q The car you were driving?

A Yes Sir.

Q Then what happened?

A He went around and got in his truck and

Woody, — I guess at the same time, it seemed

like, - Woody came around and got in the car.

Q When Woody got into the car, what do you

recall happening?

That’s when Woody asked me what the

money was doing in the back seat. I didn’t

know there was money in the back seat.

Apparently, Bill threw it in there. I didn’t

even know it was there til that time.

(R1 470-475).

Distilled, Doyle’s direct examination was again to

the effect that he had been framed. And, that it was

because he sensed this to be the case, he then drove

through the streets of New Philadelphia looking for Bill

Bonnell. It was during this effort they were seen by the

police and were arrested.

During his cross examination the prosecutor, with

the expressed approval of the Court, asked Doyle if he

was innocent. Receiving an affirmative response he then

asked Doyle the rhetorical question: “That’s why you

told the police... about your innocence?” (A 10-11.)

This question, after the Judge’s response to our

objection contributed to its prejudicial effect, caused

him to reply, “I didn’t tell them about my innocence.

No”, and that neither he nor Wood had told the police

they had been set up (A 11).

Not satisfied with these responses, and apparently

inspired on both by the Court’s apparent unwillingness

16

to protect Doyle against beirg penalized for having

exercised his rights at the point of arrest, and to further

prejudice the defense with the jury, the prosecutor, in

his quest for a conviction, pressed on. At this point, he

asked Doyle whether the arresting officers had asked

him if they could search the car. When given the

response that it was not his car, the prosecutor just had

to inquire “‘why [he] didn’t consent to a search” of the

car (A 11), why he didn’t protest his innocence at the

time the car was searched, and why he didn’t protest

his innocence at the preliminary hearing after he heard

the accusatory testimony of the officers (A 12-13).

Even this is not all, the prosecutor forced Doyle to

admit that the first time he (Doyle) had given his

version of the facts was during his testimony at the

Wood trial (A 13).

Richard Wood’s evidence, in the Doyle trial, was

again to the effect that he had absolutely nothing

whatsoever to do with any transaction between Bonnell

and Doyle. Further, that he was, as Doyle had testified,

en route to Steubenville to visit his family (R1 444).

His evidence, which agreed with Doyle’s, was that when

he entered the car, behind the club (RI 224), he

spotted the money “on the back seat” (R1 450).

Following this, he says he gathered it up.

According to Wood’s testimony as a defense witness

in Doyle’s trial, they started chasing Bill Bonnell after

Doyle remarked, “he had been had” (R1 451).

Wood, too, was asked if he had told the police he

had been set up (A 7). Wood was further examined as

to whether he had taken the “witness stand” and told

the Judge (at the preliminary hearing) he had been set

up (R1 456).

= =

-~

]

17

Consider, also, on this same point, the following

Fmost unbelievable segment of the record:

Q So upon your arrest, you didn’t tell anybody

you had been ‘set up’ and why you were

chasing Bonnell?

*x* * *

A No Sir.

Q And you didn’t testify in your own defense

at the preliminary hearing prior to indictment

in this case?

A No Sir.

*x* *

Q So the first time you testified as to the facts

in this case was at your trial?

** *

A Yes Sir. (A 9.)

The fact that each of these questions was objected

to really magnifies our problem.

Vv

In dealing with the specific questions to be

considered by this Court under its grant of certiorari,

the following rulings by the Court of Appeals are

relevant. To petitioners’ contention that it was

improper to question them as to why they did not

“protest their innocence at the point of arrest’’, the

Ohio Court of Appeals concluded:

“This was not evidence offered by the State in its

case in chief as confession by silence or as

substantive evidence of guilt but rather cross

examination of a witness as to why he had not

18

told the same story earlier at his first oppor-

tunity.

We find no error in this. It goes to the

credibility of the witness” (A 56, 62).

In dealing with the defense contention that it was

improper to elicit the fact that Doyle and Wood did

not consent to a warrantless search of the car, the

Court concluded that:

“This [too] was not a subject adduced by the

State in its case in chief offered as substantive

evidence of guilt but rather cross examination of

a witness bearing upon the limited purpose of

credibility. Concededly, this could not have been

shown in the State’s case in chief but used as it

was here in this stage of the record for this

limited purpose it was not error’ (A 55-56).

The Court’s stated position with reference to the

specific question as to the extent a defense witness can

be cross examined ruled specifically in these appeals:

“although the witness (Wood in Doyle’s case and

Doyle in Wood’s case) was not on trial here he

gave a detailed narrztive calculated to ex-

culpate.... He was cross examined in such a

manner as to demonstrate he had not told this

story at his first or other earlier opportunities. . .

This [the Court held] is proper cross examination

aie upon the credibility of the witness”

Having convinced itself that all of these questions

were proper, it was an easy decision for the Court to

reason that since “the matters were not improperly

shown... [they] were not improperly argued to the

jury.” (A 56 and 65).

19

SUMMARY OF ARGUMENT

This case is a patent example of the unwillingness

of the Ohio appellate courts to vindicate, at the

expense of reversing a conviction, the rights these

petitioners had to a fair trial. What really makes this

wrong all the more gross here is not the fact that these

courts must still be totally oblivious to the thrust even

of the relevant opinions by this Court, but rather their

apparent proneness to summarily disregard meaningful

rights in the process.

It is, of course, perfectly understandable why

policemen and prosecutors (doubtless because of their

narrow and specialized interest), continually urge that

only minimum rights should be extended or protected.

And, it is also true that every right achieved, by an

individual citizen, represents a diminution of power to

the policeman and the prosecutor. But when Courts

ratify abuses as clear as those in this case, it can only

be because they take a grudging view of the concepts of

individual rights— a view so very grudging as to

condemn, but for the supremacy of this Court, such

rights to ultimate extinction.

In this case, the issue (as to Fifth Amendment

rights) could not be clearer. When Wood and Doyle

were arrested by the police, only one of two things can

be true: either the police had the right to extract

information from them, or Doyle and Wood had a right

to remain silent. Both rights cannot be said to have

co-existed.

If Doyle and Wood had the right of silence, then it

follows they cannot peroperly be penalized for having

exercised it. If it were otherwise, then there would be

20

no reason for any policeman to ever use moderation in

his attempt to obtain information from those arrested

by him.

The question is properly one for this Court. The

issue is what kind of a society do we want. Do we want

to penalize those who exercise the rights the Constitu-

tion proclaims are theirs, or only some of them. The

Court’s resolution of the issues in this case will surely

chart a course that hopefully will be both clear and

precise.

For these, and all of the other reasons set forth

below, it is hereby urged that the convictions in these

cases should be reversed.

ARGUMENT

I.

THE ASSERTION OF A CONSTITUTIONAL

PRIVILEGE OR RIGHT IS NOT PROPERLY

PART OF THE EVIDENCE TO BE CON-

SIDERED BY THE JURY, AND NO INFER-

ENCE CAN BE LEGITIMATELY URGED

UPON, OR DRAWN BY, THE JURY

AS A CONSEQUENCE OF EITHER THEIR

HAVING BEEN ASSERTED BY THE

ACCUSED OR A DEFENSE WITNESS.

Perhaps a good starting point here is to interpret, or

offer an interpretation of, the Ohio Supreme Court’s

disinclination to grant these petitioners further appellate

review. In a nutshell, the State Supreme Court’s

judgment, which tacitly approved the Court of Appeals’

reasoning patterns, lends itself to the unexpressed

21

opinion that Harris v. New York, 401 U.S. 222 (1971),

made inapplicable not only this Court’s decision in

Miranda y. Arizona, 384 U.S. 436 (1966), but their

own decisions in State v. Stephens 24 Ohio St 2d 76

(1970); State v. Minamyer, 12 Ohio St 2d 67 (1967);

and State v. Davis, 10 Ohio St 2d 136 (1967).

For surely if Miranda were viewed by them as being

controlling there is simply no way questions such as

“why they [our petitioners] did not protest their

innocence at the point of arrest’’ could have been

approved. This is especially so here since the evidence is

clear that petitioners were advised not only as to their

right of counsel but silence as well. And both elected

not to waive these rights.

As to the specific question which asked petitioners

why their version of the events was not revealed at the

preliminary hearing, in view of the Ohio Supreme

Court’s decision of State v. Davis,’ it can only be that

they were convinced their decision could not survive

Harris v. New York. The same must have been their

view as to R.C. of Ohio, § §2937.11 and 2937.12. Of

no mean importance here §2937.12, expressly provides,

where: an accused is not represented by counsel at his

preliminary hearing, that the magistrate shall advise

him:

‘In State v. Davis, the Ohio Supreme Court ruled the trial

judge’s instruction that the jury should disregard entirely the

prosecutor's comment on the fact that the accused did not

testify at his preliminary hearing “could not correct the error in

the aforementioned conduct of the State.” (/d, 10 Ohio St.2d, at

137).

22

“ek *

(2) that... [he] may make a statement not under

oath, regarding the charge, for the purpose of

explaining the facts in evidence;

(3) That he may refuse to make any statement

and such refusal may not be used against him at

trial.”

Then there is the State Supreme Court opinion of

State v. Minamyer.* ‘This case lends itself to the

analogy that if it is prejudicial to reveal to a jury that

an accused declined to testify before a Grant Jury, it

surely must be at least as prejudicial to reveal that these

petitioners declined, on comparable grounds, to make a

statement at a preliminary hearing. And surely State v.

Stephens,’ should have been applied full force to the

arguments made by the prosecutor in these cases.

2In State v. Minamyer, our State Supreme Court had held

that “to permit a prosecuting attorney to comment upon the

refusal of an accused to testify before a grand jury would

have... [a] prejudicial effect and to allow such comment would

completely circumvent an accused’s constitutional privilege

against self-incrimination. Therefore, in a criminal prosecution a

prosecuting attorney may not testify as to or comment upon the

refusal of the accused to testify before the grand jury”. (/d, 12

Ohio St.2d, at 69). It is also significant that in Minamyer, as had

been the situation in Davis, the Court held the trial court’s

instruction to disregard this impropriety was insufficient.

*The position expressed by the Court in State v. Stephens,

was directly to the point that an argument which asks “why

didn’t... [the defendant] tell the police” that his involvement

with a forged prescription was innocent “obviously... [had] a

prejudicial effect, and to allow such comment would completely

circumvent an accused’s privilege against self incrimination.”’ (/d,

24 Ohio St.2d, at 78).

23

This brings us back to the decision in Harris v. New

York, and to this Court’s more recent decision of

United States v. Hale, U.S. (1975).

While the Hale analysis seems close enough to the

issues here to provide more than token support for our

arguments, it would be unrealistic to a fault if we failed

to recognize that in Hale this Court expressly noted it

had “no occasion to reach the broader constitutional

question that had supplied an alternative basis for the

[D.C. Circuit’s] decision below” (/d, | Ee

Slip Opinion, p. 2).

At least this much seems certain, no issue survives

Hale as to whether it is proper in a federal criminal trial

to compromise the fair trial rights of an accused on the

basis of his failure to waive his right of silence. Thus

the gut question here is whether the Constitution also

requires this same result in state criminal trials.

In Griffin v. California, 380 U.S. 609 (1965), this

Court held that “what the jury may infer, given no help

from the court, is one thing. What it may infer when |

the court solemnizes the silence of the accused into —

evidence against him is quite another.” The cogency of

this principle is, of course, beyond dispute.

The factual background for our contentions shows

the petitioner Wood (during his trial) was asked if he

told the police his defense when he was arrested

(A 28-31); and whether he ever revealed his version of

the events prior to testifying at his trial (A 31). All this,

as the above references show, was done with the

acquiescence and active approval of the trial judge. This

is so in spite of the statement, in the trial court’s post

trial ruling, to the effect that “the court does not agree

with the contention that... [Wood] was inquired about

his protest of innocence in this matter.” (A 43.)

24

Doyle, as a defense witness in the Wood ‘rial, was

asked whether he protested his innocence at t™ »oint

of arrest (A 26), and whether he ever 1c “sa his

version of the events priot to testifyine in iius tial

(A 27). In addition, the prosecutor, with the avid

support and sanction of the Court argued all of these

points to the jury. (A 37).

During Doyle’s own trial, he was asked: [a] if he

told the police his defense when he was arrested

(A 10-i1 and 12); [b] whether he consented to a

search of the car (A 11-12); [c] whether he told the

Court at the preliminary hearing his defense (A 13); and

(d] whether he ever revealed his version of the events

prior to testifying in the trial of his co-defendant (ibid).

Wood, a defense witness in Doyle’s trial, and Doyle

in Wood’s, were compelled to answer, over vigorous and

persistent defense objections: [a] whether they

protested their innocence at the point of arrest (A 7-8);

[b] whether they told the Court at the preliminary

hearing their defense (A 8); and [c] whether they ever

revealed their version of the events prior to testifying in

these trials (A 9).

Also, the record shows, the prosecutor, again with

vocalized support and sanction of the Court, argued in

both trials most, if not all, of these points to the jury

(A 14 and 18; 36-37).

Given the aggressive tenor of the prosecutor’s

questions, designed to show (as they did) that the

petitioners did not either at the point of arrest, or any

other time prior to testifying, personally reveal their

versions of the crucial events; if it is determined these

questions were improper, then there can be no valid

contention that they were harmless. In our judgment,

25

the fact that the trial judge aggressively sanctioned this

line of questioning not only magnified the prosecutor’s

final argument, but also actually compounded these

gross abuses of due process.

In Harris v. New York, this Court held that an

accused’s trial testimony could be impeached by proof,

inadmissible as a part of the prosecution’s case in chief

under Miranda, which “contrasted sharply with what he

told the police officer after his arrest” (40) U.S., at

225). Thus the view gleaned from 4Harris, and

apparently seized upon by the Courts below, is that the

credibility of an accused can be impeached not merely

by his “earlier conflicting statements” (as was the case

in Harris) but also by his previously asserted right of

silence.

It is, of course, significant here that this Court, in

resolving conflicting opinions from various circuits,

declared, in United States v. Hale, that “silence during

police interrogation lacked significant probative value

and that any reference to his silence under such

circumstances carried with it an intolerable prejudicial

impact” (/d, U.S. ___ ; Slip Opinion, p. 9).

While this holding was placed in the context of this

Court’s “supervising authority over the lower federal

courts” (ibid), it would indeed be an anomaly if the

Court’s “supervising authority over lower federal

courts” were more sensitive to the rights of an accused

than is the Court’s power as final arbiter of issues

raised under the Constitution.

Dealing then with the question as to whether there is

a meaningful basis for our contention that the

Constitution prohibited not only the questions asked,

but the arguments as well; the view as expressed by the

D.C. Circuit, in United States v. Hale, 498 F 2d 1038

26

(1974), seems unassailable. Here the Court aptly

concluded that this Court’s decision in Grunewald y.

United States, compelled ‘‘a finding, as a matter of law,

that there was nothing inconsistent between. .. silence

in interrogation” (/d., at 1043) and an explanatory

defense at trial. As to this expressed position (which is

consistent with the one argued by the State below),

Harris v. New York, 401 U.S. 222 (1971), is said to

have sanctioned the forced disclosure that the right of

silence, and to counsel, had been exercised.

To begin with, the fact that an accused (even in

Ohio) has the right to counsel and the right to remain

silent not only following his arrest, but while he is in

custody was thought to be beyond dispute. See State v.

Stephens, 24 Ohio St.2d 76, at 81-82. A necessary

corollary of this principle must be that the prosecution

may not impermissibly burden, or otherwise penalize,

one for having exercised either of these rights. Griffin v.

California, 380 U.S. 609 (1965). Also see Johnson y.

Patterson, 475 F.2d 1066 (1975), and United States vy.

Nolan, 416 F.2d 588 (1969).

Given the view, that “prior inconsistent... and

conflicting statements” obtained in violation of the

Constitution (and this would include, as the State sees

it, the failure to consent to a search of the car) can be

used for the limited purpose of impeachment at the

trial; the pivotal question here is whether the assertion

of these rights is inconsistent with innocence.

In Grunewald vy. United States, 353 U.S. 391,

415-424 (1957), this Court expressly held that a prior

assertion of the right of silence was not inconsistent

with a later assertion of innocence (/d., at 423-424).

Other cases approving this approach have made the

27

additional point that an accused cannot be penalized

for exercising his right of silence (Fowle v. United

States, 410 F 2d 48 [1969]), and that a comment on an

accused’s failure to speak out at the point of arrest, or

while in custody operates to punish him for availing

himself of the right of counsel. Fagundes v. United

States, 340 F2d 674, 677-678 (1965). Cf., United

States ex rel Macon v. Yeager, 476 F.2d 613 (1973).

Given these holdings, it is apparent that Harris v.

New York simply does not apply to our petitioners’

cases. But even this is not all. Simply holding that

Harris is inapplicable to these facts is only the short

answer. This is so because the position taken by the

Ohio Court of Appeals on this point is intrinsically

unsound for other cogent reasons, not the least of

which is the fact that even if reliance on these rights

was inconsistent with innocence, and that such could be

shown for the limited purpose indicated by the Court

of Appeals, the fact that no limiting instructions were

given must be regarded as a factor sufficient to dissipate

any harmless error contention that may subsequently

surface. —

Surely then this Court will maintain its view that

silence following an arrest is not inconsistent with

innocence, being rather the simple exercise of a right to

which all are entitled without qualification. In our view,

if this is not the case then the Miranda warnings should

be changed so as to inform an accused not only that he

has the right of silence and to counsel, and that if he

waives them anything he says can be used against him,

but that if he fails to waive such rights this too can be

used against him. McCarthy v. United States, 25 F 2d

298 (1928), cited with approval in United States v.

28

McKinney, 379 F.2d 259, at 262 (1967). Also see

Gillison v. United States, 399 F.2d 586 (1968).

On the other hand, even if Harris were applicable,

and it was proper for the prosecutor to impeach

defense testimony by prior inconsistent statements or

acts, surely this purpose was not served by questions

which ask (these petitioners in their respective cases)

the accused if he told police his defense when arrested,

why such defense was not revealed at the preliminary

hearing (where they appeared with counsel), and why

he did not reveal his version of the facts at any time

prior to his trial. In our judgment, none of these facts,

and the resultant inferences were contradictory to the

defense raised or the testimony given.

Despite all this, the rationale of United States y.

Russell, 332 F Supp 41 (1971), and United States vy.

LaVellee, 471 F 2d 123 (1972), was also offered in the

Briefs below, as support for the State’s argument. Like

the other cases relied on by the State — that is, United

States v. Ramirez, 441 F.2d 950 (1971), and United

States ex rel. Burt v, New Jersey, 475 F.2d 234 (1973)

— these too are inappropriate for consideration here for

the reasons given above. —

In any event, the Court of Appeals here, without a

citation to any authority or precedent (there were two

cases cited in the entire Opinion), at least inferentially

reasoned that in Ohio our prosecutors are privileged to

cross examine the accused “‘in such a manner as to

demonstrate he had not told... [his] story at the first

or other earlier opportunities.” (A 55 and 61). So

structured, what the Court must be saying is that even

though an accused is advised in accordance with the

Miranda concept, if he exercises any of the options

29

given him, save and except making a statement, he does

so at the peril of being impeached thereby should he

ever testify.

We contend not only that it was violative of due

process to allow these questions and the resultant

inferences: it also violated “‘elementary fairness.” See

Johnson v. United States, 318 U.S. 189, at 197 (1943).

The same is true of the arguments and comments made

by the prosecutor in his successful quest for these

convictions. See United States v. Nolan, 416 F.2d 588

(1969).

I.

As to the contention made by these petitioners that

it was improper to question their defense witness as to

why “he did not protest his innocence earlier than at

the trial... [and for the prosecutor to then] argue this

point to the jury”; the position taken by the Ohio

Court of Appeals was that such questions were proper

as bearing “upon the credibility of the witness” (A 55),

and its use for such “limited purpose” was not error

(A 55-56). It was also that Court’s view these matters

“were not improperly argued to the jury” (A 8).

The trial court, in denying petitioner Wood's

post-trial motion for judgment of acquittal, expressed

the conclusion that “there are different rules that apply

to a witness than to a defendant” (A 42). While this is

doubtless true, it is likewise true that any distinction as

to the propriety of these questions based on whether

they were addressed to the accused or to his witness (if

the arguments made above are valid) simply cannot

30

survive Constitutional scrutiny. For surely it must be

that having indicated to the witness that he too would

not be penalized if he chose to remain silent the right

of the accused to the benefit of such witness’ evidence

should not be impermissibly weighted, or otherwise

compromised, by any resultant right of the State to

disclose to the jury the fact that these Constitutional

rights were exercised. —

Viewed from still another posture, the outer limits

right to impeach, by showing prior inconsistent

conduct, is the same. This is so, in our judgment,

whether the person whose evidence is sought to be

impeached is the accused or merely his witness. Hence,

the apt test, as to whether a mere witness’ silence was

inconsistent with his trial testimony involves a con-

sideration of the same factors that would apply to the

accused. People v. Storr, 527 P.2d 878 (Colo. 1974).

Thus, it should suffice here simply to say that silence

under the facts here as well as a refusal to consent to

the search of the car; whether such silence, or refusal,

was exercised by the accused as the accused, or as a

witness creates congruent inferences.

For these reasons, and based on the arguments made

above, the contentions made here are submitted as

being controlling. Further (and for the same reasons),

this Court should feel compeiled to declare that the

Constitution forbids the prosecution from improperly

using, to the State’s advantage, the fact that a witness

(whose right to avail himself of counsel and of the

privilege against self incrimination is equal to that of an

accused) elected to stand on such rights until called

upon to testify.

31

CONCLUSION

The convictions here seem so obviously to be based

prejudicial inferences, which were created and urged

upon jury as valid contentions. On the other hand,

while the various rulings made below fail to supply even

a logical position for their vindication, the decision of

United States v. Hale, supra, to which critical reference

has been made, should be determinative. If not this,

then the conclusion expressed therein should be viewed

as also being required by the Constitution.

RELIEF

For all of the reasons argued above, the judgments

here under review should be reversed and these cases

remanded to the Ohio Court of Appeals for the

appropriate dispositions.

Respectfully submitted,

JAMES R. WILLIS, ESQ.

. 1212 Bond Court Building

1300 East Ninth Street

Cleveland, Ohio 44114

216/523-1100

Attorney for Petitioners