Petition — Wolery v. Ohio

| Pa u.&

FILED

IC, 39 1976

| MICHAEL ROOAA, JR_ CLERK

IN THE

Supreme Court of the United States

October Term, 1976

No. %6-307

JOHN J. WOLERY,

Petitioner,

v.

STATE OF OHIO,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

STATE OF OHIO

DONALD LYNN BILLMAN

915 South High Street

Columbus, Ohio 43206

Counsel for Petitioner

MIDWEST LAW PRINTERS AND PUBLISHERS, INC., Columbus, Ohio 4321

<> :

ee ag a RP ED IE LS SE NPL a LE CE LPG TGP SE NGO OLLIE,

TABLE OF CONTENTS

Petition for Writ of Certiorari

Opinion Below

Jurisdiction

Questions Presented

Constitutional Provisions

Statement of the Case

Reasons for Granting the Writ

1. THE DECISION BELOW SANCTIONS

AND GIVES LICENSE TO PROSECU-

TORS AND POLICE OFFICERS TO PA-

TENTLY DISREGARD A MANDATE OF

THE UNITED STATES SUPREME

COURT AND TO MANIPULATE A CON-

STITUTIONAL RIGHT INTO A VEHI-

CLE BY WHICH THEY SERIOUSLY

JEOPARDIZE THE CONSTITUTIONAL

RIGHT TO A FAIR TRIAL

2. THE DECISION BELOW HOLDING

THAT A CONVICTION BASED SOLELY

UPON THE UNCORPORATED TESTI-

MONY OF A SELF-CONFESSED AC-

COMPLICE WHO TESTIFIES WITH IM-

MUNITY AND PROMISES OF REWARDS

DOES NOT OFFEND JUSTICE OR DENY

THE DEFENDANT OF A FAIR TRIAL

CONFLICTS WITH THE REQUIRE-

MENTS OF DUE PROCESS OF LAW

AND EQUAL PROTECTION OF LAW.

THERE IS A CONFLICT AMONG THE

STATES AS TO THE ANSWER TO THIS

QUESTION Rr

ao fF» Ww we Te

16

16

20

3. THE DECISION BELOW SHOULD BE

REVIEWED ON THE BASIS THAT AS A

MATTER OF EVIDENCE IT IS SHOCK-

INGLY WRONG AND RISES TO PRE-

SENT A SUBSTANTIAL DUE PROCESS

QUESTION

Conclusion

Appendix :

Opinion and Decision of the Ohio Supreme

Court in State v. Wolery, 46 Ohio St 2d 316

(1976) |

ii

24

26

28

TABLE OF AUTHORITIES

Caminetti v. United States, 242 U.S. 470

(1917) 20, 21, 22

Escabedo v, Illinois, 378 U.S. 478 (1964) 10, 16

Garner v. Louisiana, 368 U.S. 157 (1961) 24

Miranda x. Arizona, 384 U.S. 436

(1966) 2,3, 10, 16, 17, 18

Rochin v. California, 342 U.S. 165 (1952) 18

State v. Fowler, 213 Tenn, 239, 245-246, 373 S.W.

2d 460, 463 (1963) 22

State v. Wolery, 46 Ohio St. 2d 316

(1976) 2,15, 17, 21, 22, 23

Thompson v. Louisville, 362 U.S. 199 (1960) 24

United States v. Toscanio, 500 F2d 267 (1974) 19

Watson v. State, 208 Md 210, 217, 117 A2d 549,

552 (1955) 21

CONSTITUTION

Constitution of the United States:

Amendment V | 4

Amendment VI 4

Amendment XIV, Section I 4

STATUTES

Section 1257(3), Title 28, U.S.C. |

Section 2907.30, Ohio Revised Code 5

Section 2923.03, Ohio Revised Code | 22

iii

IN THE

Supreme Court of the United States

October Term, 1976

No.

JOHN J. WOLERY,

Petitioner,

v.

STATE OF OHIO,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

STATE OF OHIO

TO THE HONORABLE, THE CHIEF JUSTICE

AND ASSOCIATE JUSTICES OF THE SUPREME

COURT OF THE UNITED STATES:

The Petitioner, John J. Wolery, an Attorney at Law,

a practicing criminal defense attorney for eighteen

years, prays that a writ of certiorari issue to review

the judgment and opinion of the Supreme Court of

the State of Ohio entered on June 2, 1976, which

judgment affirmed his conviction of receiving and con-

cealing stolen property by the Franklin County, Ohio,

Court of Common Pleas.

OPINION BELOW

The opinion of the Supreme Court of the State of

Ohio reported as State v. Wolery, 46 Ohio St. 2d 319

(1976) is attached at Exhibit A.

JURISDICTION

The judgment of the Supreme Court of the State

of Ohio was entered on June 2, 1976, affirming peti-

tioner’s conviction dated November 16, 1973. The

jurisdiction of this Court is invoked under 28 U.S.C.

Section 1257(3). Petitioner believes that a conviction,

as his, based upon the uncorroborated testimony of

three self-confessed career criminals, all clients of the

petitioner, after the Prosecutor deliberately withheld

the Miranda Warning, as announced by this Court in

Miranda v. Arizona, 384 U.S. 436 (1966), as a

“device” to establish immunity before said criminals

divulged any information implicating the petitioner

as their accomplice and co-conspirator is violative of

the Due Process and Equal Protection clause of the

United States Constitution and that such procedure

denied petitioner a fair trial. There is a conflict among

the various states whether a criminal defendant can

be convicted upon the uncorroborated testimony of

self-confessed criminals who have been given complete

immunity from prosecution in return for their testi-

mony. Further this Court has jurisdiction to review

conduct of Prosecutors and Police Officers, who manip-

ulate decisions of this Court in a manner which offends

‘fundamental justice”.

3

QUESTIONS PRESENTED

1. Is it violative of the Due Process and Equal Pro-

tection Clauses of the Fourteenth Amendment to

the United States Constitution and the Federal

requirement of a Fair Trial for a criminal! de-

fendant to be convicted solely upon the uncor-

roborated testimony of a self-confessed criminal

who claims to have been an accomplice of the de-

fendant when that witness is rewarded with im-

munity for all crimes to which he testifies in return

for testimony against said criminal defendant?

2. Is it permissible within the Constitutional require-

ment of Due Process and Equal Protection Clauses

of the Fourteenth Amendment to the United States

Constitution in the guarantee of a Fair Trial for

a State Prosecutor and Police to deliberately con-

spire with and to intentionally fail to give a crimi-

nal suspect the Miranda Warning and otherwise

withhold the mandate of the United States Supreme

Court as announced in Miranda v. Arizona, supra,

at the outset of questioning upon the premise that

should said suspect later confess certain crimes

and implicate their attorney as an accomplice in

the criminal conduct which they are about to reveal

they will thus be protected from individual prose-

cution or does such conduct otherwise offend funda-

mental justice and so taint the trial as to deny to

the defendant so convicted with said testimony the

constitutional requirement of a fair trial?

3. In the novel situation of a criminal defense attor-

ney’s trial where the only evidence is the testimony

of a self-confessed career criminal—who has been

represented by that same attorney for nearly all

4

the fifteen years that he has been an attorney—

who with complete immunity confesses to numer-

ous crimes and implicates his attorney as an accom-

plice to some of those same crimes is that so shock-

ingly wrong as to raise a matter of evidence to the

level of a denial of substantive Due Process and is

this conviction unconstitutional under the Due

Process Clause of the Fourteenth Amendment to

the United States Constitution?

CONSTITUTIONAL PROVISIONS INVOLVED

Constitution Of The United States, Amendment V:

“‘No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a present-

ment 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 offence to be twice wy in jeopardy

of life or limb; nor shall be compelled in any crim-

inal 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 VI:

“In all: criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the State po district wherein

the crime shall have been committed, which dis-

trict shall have been previously ascertained by

law, and to be informed of the nature and cause of

the accusation ; to be confronted with the witnesses

against him; to have compulsory process for ob-

taining witnesses in his favor, and to have the As-

sistance of Counsel for his defence.”’

Constitution Of The United States, Amendment XIV,

Section I:

“All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

5

citizens of the United States and of the State

wherein they reside. No State shall make or en-

force 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 pro-

tection of the laws.”

STATEMENT OF THE CASE

Petitioner, John J. Wolery, a criminal defense attor-

ney before state and federal courts for over fifteen

years at the time—having been admitted to the Ohio

Bar on April 23, 1958—was on August 16, 1973,

indicted by the Franklin County, Ohio, Grand Jury

on eight counts of receiving and concealing stolen prop-

erty in violation of Section 2907.30, Ohio Revised Code,

under five separate cases.

Petitioner entered a plea of not guilty to all counts

and was tried before a jury in November of 1973. In a

trial of ten days, the state presented seven unfortunate

victims of as many burglaries of assorted items from

antique dishes to airplane radios and thereafter pre-

sented three individuals who offered testimony, per-

sonally admitting to having committed these crimes,

seeking to individually link the Petitioner to different

counts of the eight counts under the indictment.

Three self-confessed career criminals testified of be-

ing in various stages of indictment, arrest and await-

ing sentencing for numerous state and federal crimes

when they, and often their wives, were approached by

officers of the Columbus, Ohio, Police Department and

by lawyers with the Franklin County, Ohio, Prosecu-

tor’s Office offering a deal by which in exchange for

testimony linking their attorney with their various

burglaries they would be given absolute immunity—

bordering on full amnesty—for all crimes “except

6

murder and perjury” to which they confessed while

linking this attorney to the receiving and benefiting

from the goods from some of those same crimes which

they committed. The State’s trial prosecutor, by his

questions, established that it was the police and the

prosecutors who did all the talking and made all the

contacts and overtures seeking to elicit testimony im-

plicating this criminal defense attorney.

The State of Ohio called Lester Compton who testi-

fied—as is revealed in the record of the trial court

below*—that while awaiting sentencing upon a Fed-

eral Conviction in New York, he was permitted to

return to Ohio for the funeral of a brother at which

time he was arrested during the commission of a

burglary. That State’s witness testified:

“DIRECT EXAMINATION OF COMPTON BY

PROSECUTOR:

PROSECUTOR: Q. While it — was it while you

were back in Columbus that

you were caught in this

burglary that we— you

were charged with here?

COMPTON: A. Yes.

PROSECUTOR: Q. And since the date of your

capture at the burglary

scene, you’ve been in the

Franklin County Jail ever

since?

* The official transcript of the trial below is in the form of audio-video

tape coering the ten day trial. This form of transcript was found to be

not acceptable by the Franklin County, Ohio, Court of Appeals who

ordered a written transcript prepared. In this petition all references to

the trial record are from this written transcript captioned Audio Cas-

sette Transcript Of Video Record, Part One and Part Two, and will

herein be captioned Trial Transcript.

7

COMPTON: A. Yes, sir.

PROSECUTOR: Q. From time to time while

you were in the County Jail,

Mr. Compton, did any de-

tectives of the Columbus Po-

lice Department come to

talk to you?

COMPTON: A. Many times.

PROSECUTOR: Q. And on the occasions when

they would come and talk to

you in the County Jail, did

you talk with them?

COMPTON: A. I more or less listened and

talked less.

PROSECUTOR: Q. You did the listening and

they did the talking? I take

it you didn’t answer much

in the way of questions for

them?

COMPTON : A. No.”

Trial Transcript, P. 377-378

The procedure followed by the State’s Prosecutor

and Police in building the case against Attorney

Wolery, was further testified to by Witness Johnston

upon cross-examination by Petitioner’s trial counsel:

“CROSS-EXAMINATION OF JOHNSTON BY

DEFENSE COUNSEL:

COUNSEL: Q. Who were you questioned

by of the Columbus Police

Department in April, 1973?

JOHNSTON: A. Quite a few police officers.

COUNSEL:

JOHNSTON:

COUNSEL:

JOHNSTON:

COUNSEL:

JOHNSTON:

COUNSEL:

JOHNSTON:

COUNSEL:

JOHNSTON :

COUNSEL:

JOHNSTON :

- © PO

See

8

Quite a few. How many

times?

. Ah— Over a period of —

ah — maybe a week, prob-

ably — why, every rom of

that week. Now, as to how

many different peoples, I

don’t know. Maybe five a

day — six a day.

Were you tired?

No.

Did you feel under any

pressure?

Ah—wNo more than nor-

mal.

No more than normal?

Yah.

Are you giving your testi-

mony in this case, Mr. John-

ston, because you got im-

munity?

. Ah—I was assured that I

was going to go to the Peni-

tentiary for a long time un-

less I told everything that I

know. Well, everything that

I’ve done and i have not

testified to anything other

than what I, myself, have

done.

Q. Were you trapped into this

by Stroebel?

A. No. I took what was of-

fered.

9

Q. Well, that was the best deal,

you could make, wasn’t it?

JOHNSTON: A. I never tried for anymore.

COUNSEL: Q. Now, I’m going to refer —

page 44 — again to the dep-

osition taken June 11, 1973,

by Larry Kimble and in or-

der to refresh your recollec-

tion, I ask you if you recall

these questions; two of them

and these two answers?

Question: ‘Then in turn you

accepted immunity in this

ease if you would testify

against other people?’ An-

swer: ‘I was—you know

like guaranteed if I didn’t I

would probably spend the

rest of my life in prison.’

Question: ‘So that is the

reason you’re wasnt | in

this case?’ Answer: ‘Yes

since I was trapped into it,

I’m making the best deal I

can.’

You were asked those ques-

tions and gave those an-

swers?

A. Un Hm [Yes]”

Trial Transcript, P. 499-500

The testimony offered established that all three wit-

nesses—Hall Courtney “Duke” Stroebel, Donald K.

Johnston and Lester L. Compton—had been petty

burglars for over fifteen years each—al] had careers

reaching back to juvenile offenses. All three testified

that for a great portion of this time they had been

represented by the Petitioner—he had been and was,

COUNSEL:

JOHNSTON:

ee ee eee ee ee eee

10

at the time their testimony was solicited, their criminal

defense attorney!

The State’s Prosecutor established by testimony of

the elaborate and original scheme by which this Office

did “safeguard” and otherwise ‘guarantee’ these

three criminals, whose testimony he was soliciting,

absolute immunity from future prosecution for all

crimes testified to at trial—by not complying with and

otherwise ignoring the mandate of this Court in

Miranda and Escabedo v. Illinois, 378 U.S. 478 (1964).

Before hearing what evidence these career criminals

could offer the Prosecutor “told them” that should

they happen to implicate their attorney such testimony

in court by them against their criminal defense attor-

ney would be rewarded with what was to amount to

full amnesty for all crimes—which the record of the

trial established included the attempted murder of a

witness in another criminal case in which Stroebel and

Johnston were on trial!

The scheme of establishing immunity by not giving

the Miranda Warning was testified to by Witness

Stroebel upon examination by the Prosecutor:

“PROSECUTOR: Q. Did you talk with me [the

Prosecutor |?

STROEBEL: A. Yes, I did.

PROSECUTOR: . Was a discussion of immu-

nity held at that time?

STROEBEL: . Yes, it was.

Q

A

PROSECUTOR: Q. What were you advised?

A

STROEBEL: . I was advised that Ohio

didn’t have a— actually a

technical immunity law for

a case like this, but that you

11

would give me immunity by

not giving me my rights.

PROSECUTOR: Q. Subsequent to that, sir, did

you begin conversations

with people in the Prosecu-

tor’s Office and the police

about what you knew about

crime in Columbus or Cen-

tral Ohio?

STROEBEL: A. Yes, I did.

PROSECUTOR: Q. Do you recall meeting Mike

Miller of the Prosecutor’s

Office?

STROEBEL: A. Yes, I—ah—. Actually

after the arrangements

were made with you, he was

to be in charge of — I guess

you would call it the investi-

gation from the Prosecu-

tor’s Office.

PROSECUTOR: Q. Did you have a lot of con-

versations with him?

STROEBEL: A. Yes, sometimes as high as

12 and 14 hours a day.”

Trial Transcript, P. 241

At the time this criminal trial was being organized

there was no provision for or authority for a Judge,

let alone a Prosecutor or Police Officer, to extend a

“orant of immunity” in return for testimony. An

“ingenious” Ohio Prosecutor developed the scheme by

which these subjects would not “be given their rights”’

—the Miranda Warning would not be read—prior to

any confession or information given, therefore abso-

lutely “protecting” these criminals from ever being

12

placed in jeopardy. Further promises and deals were

made representing how this testimony would be re-

warded with appearances by representatives of the

Franklin County, Ohio Prosecutor’s Office before courts

about to sentence these criminals on other criminal

convictions who would there plead for “mercy” in

recognition of that criminal’s “service to Ohio”.

The only evidence offered by the State was the testi-

mony of these three self-confessed burglars who al-

leged that their attorney, the Petitioner, was one of

their accomplices. The testimony of Witness Compton

established that the ‘deal’ with the Prosecutor in-

cluded a promise that he would not have to violate the

“code of the underworld” in that he would not have to

implicate any accomplices other than his attorney:

“CROSS EXAMINATION OF COMPTON BY

DEFENSE COUNSEL:

COUNSEL: Q. Now, you say you made

some kind of an arrange-

ment [in addition to] im-

munity, but in that arrange-

ment you made, did you not

exclude William Step, Rich-

ard Bostic, Thomas Wilkin-

son, R. D. Hopkins, and

Chuck Stanley from any

testimony that you might

give against anyone?

COMPTON: A. I think you got a bad list.

COUNSEL: Q. All right. Would you give

me a proper list?

COMPTON: A. I think I excluded Charles

Crowder instead of Chuck

Stanley.

COUNSEL: Q. All right. Charles Crowder?

COMPTON: A. To the best of my recollec-

tion, I—I never read it —

it [written agreement with

13

the Prosecutor] over real

carefully but there was a

number of people that I did

fear that I ex—stated I

would not testify against

under any circumstances

for fear that they might

take revenge on my family

later.

COUNSEL: Q. And Charles Crowder was

one of these?

COMPTON : A. Yes, I think he was.

COUNSEL: Q. And yet he’s the man you

threatened, isn’t he?

COMPTON: A. Again, I cannot answer the

question.

COUNSEL: Q. Because you don’t know.

COMPTON: A. Because if it was any one

of the five, I wouldn’t an-

swer the question.”

Trial Transcript, P. 420-421

The State of Ohio rested its case upon the uncorrobo-

rated testimony of in effect, one witness giving testi-

mony to each count—only to the count of receiving a

stolen airplane radio did two witnesses, Stroebel and

Johnston, testify as to the other counts only one witness

offered testimony seeking to establish the Petitioner’s

—Attorney’s—involvement as an accomplice. The only

evidence was from self-confessed criminals and alleged

accomplices who testified that they were rewarded with

amnesty from crimes which if for which they were

convicted would in all reality mean spending the re-

mainder of their natural life in prison in light of the

seriousness of the charges—from breaking and enter-

ing of an inhabited dwelling in the night session to

attempted murder by bombing—and their extensive

criminal records.

14

Trial counsel for the Petitioner moved the Court to

dismiss all the charges upon the failure of the state

to present evidence sufficient to support the charges

upon this uncorroborated testimony further upon the

conduct of the Prosecutor in deliberately withholding

the Miranda Warning. The trial court denied this

motion on seven counts and dismissed one count upon

the failure of the state to establish ownership of one

of the airplane radios.

The Petitioner took the stand in his own behalf

testifying that he had been criminal defense counsel

to all three of the state’s self-confessed criminal wit-

nesses and that he had so represented them before

state and federal tribunals. This attorney emphatically

denied any crimina! behavior or misdeeds and testified

that he had at all times only vigorously defended them

seeking justice as their trial advocate. The defense

called three judges of the Franklin County Court of

Common Pleas who testified as to the outstanding

reputation and standing of this attorney as a most

powerful and successful criminal defense counsel.

Upon the conclusion of the trial before the matter was

presented to the jury, defense counsel moved the court

for a judgment of acquittal. This motion was denied.

The jury was then charged as to seven counts of the

eight count indictment.

The jury returned a verdict of “not-guilty” to three

counts and “guilty” to four counts of the eight counts

originally charged. A timely appeal was taken to the

Franklin County, Ohio, Court of Appeals charging

nine assignments of error. In a decision returned on

July 16, 1974, the Court of Appeals affirmed the con-

viction. A Motion To Reconsider was timely filed and

on September 10, 1974, the Court of Appeals issued

a decision dismissing this Motion.

15

The decision of the Franklin County, Ohio, Court

of Appeals was timely appealed to the Ohio Supreme

Court which returned a decision on June 2, 1976,

affirming the conviction in an opinion reported as

State v. Wolery, 46 Ohio St. 2d 316 (1976).

16

REASONS FOR GRANTING THE WRIT

1. THE DECISION BELOW SANCTIONS AND

GIVES LICENSE TO PROSECUTORS AND PO-

LICE OFFICERS TO PATENTLY DISREGARD

A MANDATE OF THE UNITED STATES SU-

PREME COURT AND TO MANIPULATE A

CONSTITUTIONAL RIGHT INTO A VEHICLE

BY WHICH THEY SERIOUSLY JEOPARDIZE

THE CONSTITUTIONAL RIGHT TO A FAIR

TRIAL.

The unabashed perversion of the Miranda Warning

—which sprang out of this Court’s decision in Miranda

v. Arizona, supra,—by the Franklin County, Ohio,

Prosecutor and the Columbus, Ohio, Police Officers

presents a serious legal problem in the administration

of justice and presents a most substantial Due Process

question.

Every facet of the Court’s decision in Miranda has

been distorted and twisted into a tool of oppression

and coercion. The Miranda decision which is an imple-

mentation of Escabedo v. Illinois, supra, and which

served as an expansion and clarification thereof has

been used by the Ohio Prosecutor and Police as a

vehicle to destroy all that those two decisions were

designed to clarify and guarantee in the criminal jus-

tice system.

The prosecutor and police officers herein took into

custody criminal suspects who they subjected to one-

sided conditioning and indoctrination—a reverse type

of interrogation—and threatened these subjects with

numerous prosecutions with promises of long prison

sentences which could be exchanged for freedom con-

ditioned upon the acceptance of a programmed testi-

17

mony implicating their criminal defense counsel as

an accomplice in their burglaries. These criminal sus-

pects were deprived of their freedom by the establish-

ment of exceedingly high bail or were otherwise

“trapped” as Witness Johnston testified, see, Trial

Transcript, P. 500, into giving involuntary confessions

which however would not be used against them but

against their attorney. They were guaranteed immu-

nity from prosecution by the deliberate and calculated

“failure” to warn. The Supreme Court of Ohio in their

review of this practice in an opinion by Justice Paul

W. Brown, said of this:

“(T]he Franklin County prosecutor made prom-

ises of immunity to witnesses, Stroebel and John-

ston, and safeguarded these promises by deliber-

ately failing to read... the Miranda Warnings

... [I]t does not follow that appellant [Attorney

Wolery] was thereby prejudiced, or that the testi-

mony so obtained was inadmissible.”

State v. Wolery, supra, 319.

The Ohio Supreme Court gave its stamp of approval

to this perversion of Miranda by holding that the

petitioner was not prejudiced by such manipulation

in order to affirm this attorney’s conviction however,

did attach a most curious footnote:

“Though so holding, the court wishes to indicate

its disapproval of the prosecutor’s decision to fail

to advise witnesses, Stroebel and Johnston of their

constitutional rights under Miranda v. Arizona,

(1966) 384 U.S. 436, for the purpose of granting

immunity to, and obtaining the testimony of, those

witnesses. The members of the court do not con-

done this conduct, and prosecutors and their staffs

should hereafter avoid such unseemly behavior.”

State, v. Wolery, supra, Footnote No. 3, 323.

18

The relegation of such a shocking example of police-

state tactics to a footnote is a tragedy if not a mockery

of the pronouncement of this Court in Miranda. The

state’s police and prosecutors squeezed their witnesses

between express and implied threats of life in prison—

they were highly vulnerable and they seized the enor-

mous personal benefit to them which was offered—the

sacrifice of their attorney for freedom. A most enticing

offer based upon the prostituted use of this Court’s

decision in Miranda and the career of a criminal de-

fense attorney!

In Rochin v. California, 342 U.S. 165, 172-173

(1952), Justice Frankfurter writing for che Court

said:

“Tt has long since ceased to be true that due pro-

cess of law is heedless of the means by which other-

wise relevant and credible evidence is obtained.

This was not true even before the series of recent

cases enforcing the constitutional principle that

the States may not base convictions upon confes-

sions, however, much verified, obtained by coer-

cion. These decisions are not arbitrary exceptions

to the comprehensive right of States to fashion

their own rules of evidence for criminal trials.

They are not sports in our constitutional law but

applications of a general principle. They are only

instances of the general requirement that states in

their prosecutions respect certain decencies of civ-

ilized conduct. Due process of law, as a historic

and generative principle, precludes defining, and

thereby confining, these standards of conduct more

precisely than to say that convictions cannot be

brought about by methods that offend a ‘sense of

» 99

justice’.

What has occurred here violates and offends the Due

Process and Equal Protection Clauses of the Four-

19

teenth Amendment for as the court in U.S. v. Tosca-

nino, 500 F2d, 267, 272 (1974) said:

“TN Jo longer is [Due Process] limited to the guar-

antee of a ‘fair’ procedure at trial. In an effect to

deter police misconduct, the term has been ex-

tended to bar the government from realizing the

fruit of its own deliberate and unnecessary law-

lessness in bringing accused to trial.”’

20

2. THE DECISION BELOW HOLDING THAT A

CONVICTION BASED SOLELY UPON THE

UNCORROBORATED TESTIMONY OF A

SELF-CONFESSED ACCOMPLICE WHO TEST-

IFIES WITH IMMUNITY AND PROMISES OF

REWARDS DOES NOT OFFEND JUSTICE OR

DENY THE DEFENDANT OF A FAIR TRIAL

CONFLICTS WITH THE REQUIREMENTS OF

DUE PROCESS OF LAW AND EQUAL PRO-

TECTION OF LAW. THERE IS A CONFLICT

AMONG THE STATES AS TO THE ANSWER

TO THIS QUESTION.

The decision below is not a correct analysis of the

law of the criminal justice system as it exists today

and is based upon an incomplete review and apprecia-

tion for the requirements of the United States Con-

stitution.

The Supreme Court of Ohio held that upon a review

of the weight of or sufficiency of the evidence necessary

to sustain a criminal conviction based upon the uncor-

roborated testimony of an accomplice relied upon the

dicta of this Court in Caminetti v. United States, 242

U.S. 470 (1917) and held that pronouncement to be a

“federal rule’. In that decision this Court stated:

“[TJhis court refused to reverse a judgment for

failure to give an instruction of this general char-

acter, while saying that it was the better practice

for courts to caution juries against too much reli-

ance upon the testimony of accomplices, and to

require corroborating testimony before giving

credence to such evidence.”

Caminetti v. United States, supra, 495.

The Ohio Supreme Court ignored the suggestion in

that decision when the Court indicating that “. . . it

21

[is] the better practice for courts . . . to require cor-

roborating testimony before giving credence to such

evidence”. The Court went on to say:

“While this is so, there is no absolute rule of law

preventing convictions on the testimony of accom-

plices if juries believe them.”

Caminetti v. United States, supra, 495.

The Court is urged that it is time to make the pro-

nouncement in Caminetti “to require corroborating

evidence” an “absolute law”! Ohio misinterpreted the

applicable message of Caminetti as have some twenty-

nine other states. There is a conflict interpreting this

1917 decision for in some seventeen states corrobora-

tion is required by statute, see, State v. Wolery, supra,

Footnote No. 8, 330. In two states—Maryland and

Tennessee—corroboration is required by judicial de-

cision :

The Court of Appeals of Maryland said in Watson v.

State, 208 Md, 210, 217, 117 A.2d 549, 552 (1955):

“It is a firmly established rule in this State that a

person accused of crime may not be convicted on

the uncorroborated testimony of an accomplice.

[citations omitted] . . . The reason for the rule

requiring the testimony of an accomplice to be

corroborated is that it is the testimony of a person

admittedly contaminated with guilt, who admits

his participation in the crime for which he par-

ticularly blames the defendant, and it should be

regarded with great suspicion and caution, be-

cause otherwise the life or liberty of an innocent

person might be taken away by a witness who

makes the accusation either to gratify his malice

or to shield himself from “eapaner mg or in the

hope of receiving clemency by turning State’s evi-

dence. [citations omitted] .. .”

22

The Supreme Court of Tennessee said in State v.

Fowler, 213 Tenn. 239, 245-246, 373 S.W. 2d 460, 463

(1963) :

“Under the common law, the testimony of an ac-

complice, if it satisfies the jury beyond a reason-

able doubt of the guilt of the defendant, may be

sufficient to warrant a conviction although it is

uncorroborated. The rule is this State, however,

requires corroboration, and there should be some

fact testified to entirely independent of the accom-

plice’s testimony, which, taken by itself, leads to

the inference, not only that a crime has been com-

mitted, but that the defendant is implicated in it,

and the corroboration must consist of some fact

that affects the identity of the party accused.

[citations omitted]... .”

The Court is urged to grant this writ of certiorari

and to permit argument that it is time—on the 60th

Anniversary of Caminetti—to establish that it is viola-

tive of Due Process and Equal Protection for a crim-

inal defendant to be convicted upon the uncorroborated

testimony of an accomplice.

The Petitioner was convicted upon the uncorrobo-

rated testimony of self-confessed criminals who were

rewarded with complete immunity—as well as finan-

cial inducement—for this testimony implicating their

criminal defense attorney as an accomplice to their

burglaries. The jury returned its verdict in State v.

Wolery, on November 16, 1973. On January 1, 1974,

Section 2923.03, Complicity, Ohio Revised Code be-

came law—this statute states at Section 2923.03(D):

‘‘No person shall be convicted of complicity under this

section solely upon the testimony of an accomplice,

unsupported by other evidence”. It appears that “pos-

sibly” the Petitioner could not have been convicted

23

had his trial been held forty-five days later—however,

this statute was in effect on June 2, 1976, when the

Ohio Supreme Court decided State v. Wolery, supra

and stated in Footnote No. 8 that “the Ohio rule” did

not require corroboration.

24

3. THE DECISION BELOW SHOULD BE RE-

VIEWED ON THE BASIS THAT AS A MAT-

TER OF EVIDENCE IT IS SHOCKINGLY

WRONG AND RISES TO PRESENT A SUB-

STANTIAL DUE PROCESS QUESTION.

The Court should grant certiorari so as to review

whether this attorney’s criminal conviction was so

totally devoid of evidentiary support as to render his

conviction unconstitutional under the Due Process

Clause of the Fourteenth Amendment. The record of

these proceedings goes not only to the sufficiency of

the evidence but to whether his conviction rests upon

any evidence at all! See, Thompson v. Louisville, 362,

U.S. 199 (1960) and Garner v. Lowisiana, 368 U.S.

157 (1961).

The Court’s attention is directed to the time in this

Nation’s jurisprudence when the Petitioner was tried

—at the time of the tragic Watergate Affair! Such an

influence upon all cannot be ignored—the Franklin

County, Ohio, Prosecutor clearly had Watergate in

mind when he said in closing argument to the jury

before that panel deliberated Attorney Wolery’s fate:

“{I]n this day and age, ladies and gentlemen,

there have been people brought before the Bar of

Justice whose good character in their particular

calling or profession has always been above re-

proach and who could call upon character witness

after character witness and hopefully all of us

have friends. But those character witnesses are

not involved in the facts, in the individual deal-

ings. They may be shocked to disbelief, but it hap-

pens. It happens all the time.

No one has come down. No angel has come down

and anointed the foreheads of attorneys and said:

‘You are all above reproach and all attorneys are

of good character. And all attorneys because they

have taken their oath and defend those that are

accused will never and can never do anything

25

wrong.’ There is no such anointing. There is no

such protection. On the other hand, no one is here

to crucify John Wolery and his entire life. No one

has said his entire life is bad. That’s not what he’s

on trial for. He’s on trial for specific incidents in

that life. As good as that life may be. As produc-

tive as it may be. As above reproach as it may be

in [fifty] areas. He’s here in one area. That’s

the area you have to decide.

In his association over the years with the thieves,

did he fall into a trap of taking an item here,

taking an item there and being one of them on a

small scale. Thank you, ladies and gentlemen.”

Trial Transcript, P. 988-989.

26

CONCLUSION

The Court is urged in the interest of justice to issue

a writ of certiorari to review the judgment and opinion

of the Ohio Supreme Court and to permit full and com-

plete argument of this most shocking conduct on behalf

of Prosecutors and Police who “play games” with rul-

ings of this Court and to review the procedure whereby

a criminal defendant can be convicted upon the uncor-

roborated testimony of a self-confessed co-conspirator

rewarded with immunity from being held accountable

for his direct criminal activity. This case presents

questions which go to the roots of our concepts of

American criminal jurisprudence.

This Petition is filed in the interest of justice—all

who come before the bar of the criminal justice system

—those who stand accused and those who advocate the

cause of the accused—must be assured that they will

not have to travel this path laced with treachery. Con-

(uct as engaged in by these Ohio Prosecutors and

Police must be condemned else no lawyer will be safe

from intimidation and no client will be assured of a

fair trial for his counsel will have to compromise his

advocacy out of fear for his very survival—to be suc-

cessful is to invite such attack.

The Petitioner also stands before this Court not

only as a fellow attorney but as a simple man—even

a most simple man would know that justice has been

denied him. The Petitioner also cries out in his final

breath as an attorney—this Court can shield him from

the final assault which will surely be that after eigh-

teen years as a criminal defense attorney, he will be

declared unfit to practice law upon the testimony of

three professional criminals who seized a Prosecutor’s

offer of freedom in return for their faithful attorney’s

destruction. One who has sought justice for others has

had it denied to him by the courts, the prosecutors and

27

the police of Ohio, who participated in this travesty—

this Court will pronounce final judgment as to whether

justice will be victorious—treachery unchallenged is

treachery encouraged!

The Petitioner is an attorney and he even more 80

knows that justice has been de:.ied to him—that knowl-

edge is a most grevious hurt, one not easy to describe.

The pain is especially sharp for he is trained as one of

the protectors of justice and fairness. Such a hurt can

destroy and that is the result when justice is denied as

it has been to him. Justice is vibrant and alive—

having well defined principles and attributes by which

a free people grow. Justice gives liberty its meaning

and both must be protected from all forms of tyranny

else they will wither and die from the strangling vines

of treachery and deceit. Justice takes the raw power

of the State and molds it into law having a foundation

of those defined principles. It is the courts—most espe-

cially this Court—who is privileged to seek and define

the meaning of justice within the particular context

presented. The raw power of the State of Ohio has

been wielded in an impermissible and reckless manner

and this Court is petitioned to require a full and ex-

haustive examination of what has occurred within the

criminal justice system of Ohio.

For these reasons, a writ of certiorari should issue

to review the judgment and opinion of the Ohio Su-

preme Court.

Respectfully submitted,

DONALD LYNN BILLMAN

915 South High Street

Columbus, Ohio 43206

Counsel for Petitioner

28

APPENDIX

Exhibit A

IN THE SUPREME COURT OF THE

STATE OF OHIO

Case No. 74-1014

THE STATE OF OHIO,

Appellee,

v.

WOLERY,

Appellant.

Decided Jure 2, 1976

APPEAL from the Court of Appeals for Franklin

County.

On August 16, 1973, appellant, Columbus attorney

John J. Wolery, was indicted on eight counts of receiv-

ing and concealing stolen property, in violation of

R. C. 2907.30.'

At his trial, in November 1973, three self-confessed

criminals testified for the state. Two, Hal Courtney

Stroebel and Donald K. Johnston, had been granted

immunity from prosecution by the Franklin County

prosecutor in exchange for their testimony. A third,

Lester R. Compton, had been allowed to plead guilty

to a lesser included offense in return for his testimony.

No statute then in effect authorized a grant of im-

munity to Stroebel and Johnston. For this reason, and

' R. C. 2007.30, repealed effective January 1, 1974, provided in part:

“No person shall buy, receive, or conceal anything of value which

has been stolen, taken by robbers, embezzled, or obtained by false pre-

tense, knowing it to have been stolen, taken by robbers, embezzled, or

obtained by false pretense.”

29

with the express intention of implementing a grant,

police officers and prosecutors did not read Stroebel

and Johnston the Miranda warnings prior to question-

ing them. To further implement the grant, the prose-

cutor filed, on June 20, 1973, in the cases of State v.

Stroebel and State v. Johnston, a “motion for immu-

nity” in the Court of Common Pleas of Franklin

County. Judge Frederick T. Williams filed an entry in

each case, which stated:

“On June 20, 1973, a motion was filed by the plain-

tiff in this matter requesting that this defendant be

granted immunity from prosecution for all crimes that

he testified to before the Franklin County Grand Jury

in May of 1973. Said immunity request was based on

the fact that this defendant would testify in open court

concerning his knowledge of said crimes if and when

any indictments were returned by a Franklin County

Grand Jury based in part or wholly upon said testi-

mony.

“After reviewing the facts and law pertaining to

this matter, it is the finding of this court that said

motion is well taken and it is hereby sustained. This

decision is made in accordance with State v. Trocodaro

[ (1973), 36 Ohio App. 2d 1, motion for leave to ap-

peal denied by this court, October 4, 1973], Franklin

County Court of Appeals, Case Number 73-AP-24,

decided May 22, 1973.”

The purported grants of immunity to Stroebel and

Johnston, and the plea bargain with Compton, were

disclosed to the jury, and were scrutinized upon direct

and cross examination of those witnesses. The trial

court instructed the jury to examine accomplice testi-

mony with caution.

Stroebel and Johnston testified to stealing various

30

items of personal property, including airplane radios,

antique dishes and furniture, a mink stole, home enter-

tainment units, television sets, a radio, cash, and a

silver coin collection. Compton admitted stealing an-

tique glassware and furniture. Many of these items,

according to Stroebel, Johnston, and Compton, were

given or sold to appellant, who in each instance, ac-

cepted or purchased the property knowing it had been

stolen.

Appellant was convicted upon four of eight counts.

Specifically, he was found guilty of receiving and con-

cealing antique glassware, a clock, lamp, table, and

music box, and two Mark 12(A) airplane radios. One

count was dismissed by the trial court. On three of the

counts, appellant was found not guilty.

Upon appeal, the Court of Appeals affirmed each

conviction.

The cause is now before this court pursuant to the

allowance of a motion for leave to appeal.

Mr. George C. Smith, prosecuting attorney, Mr.

James J. O'Grady and Ronald J. O’Brien, for appellee.

Messrs. Topper, Alloway, Goodman, DeLeone & Duf-

fey and Mr. John J. Duffey, for appellant.

PAUL W. Brown, J.

I.

Appellant attacks the manner in which immunity

from prosecution was granted to witnesses Stroebel

and Johnston, asserting that such a grant was without

statutory authority, and that it did not adequately pro-

tect the constitutional rights of Stroebel and Johnston.

He seeks, upon this basis, to have the testimony

excluded. Appellant argues that the testimony of

Stroebel, Johnston and Compton was the product of

coercion, and therefore not credible as a matter of law.

31

He also contends that the Franklin County prosecutor

abused his discretion in his selection of those persons

to be prosecuted, and, in so doing, violated appellant’s

right to equal protection of the laws.

At the time of appellant’s trial, Ohio had no immu-

nity statute applicable to the crimes committed by

Stroebel and Johnston. R. C. 2945.44 permitted courts

to grant immunity only in cases involving gambling

and liquor violations. To circumvent this implicit stric-

ture against other grants of immunity, the Franklin

County prosecutor made promises of immunity to wit-

nesses Stroebel and Johnston, and safeguarded those

promises by deliberately failing to read Stroebel and

Johnston the Miranda warnings, and by securing an

entry of immunity from a judge of the Court of Com-

mon Pleas. Although this course of conduct was not

sanctioned by law, it does not follow that appellant

was thereby prejudiced, or that the testimony so ob-

tained was inadmissible.

Whether the purported grant of immunity to wit-

nesses Stroebel and Johnston will effectively shield

those individuals from a future prosecution based upon

their testimony in appellant’s trial* is of no concern

to the appellant. The Fifth Amendment privilege

against self-incrimination is personal to each witness.

Haile v. Henkel (1906), 201 U.S. 43.

Nor does the fact that the testimony of Stroebel and

Johnston was secured in a manner not technically au-

thorized by law prejudice the appellant. A promise of

leniency offered by the state in exchange for testimony

is one factor which the jury may consider in weighing

2 See Note, Judicial Supervision of Non-Statutory Immunity, 65

J. of Criminal Law & Criminology 334 (1974); Note, Judicial En-

forcement of Nonstatutory “Immunity Grants”: Abrogation by Analogy,

25 Hastings Law J. 435 (1973).

32

the credibility of a witness. Here, the jury was fully

apprised of the means by which the testimony of

Stroebel and Johnston was obtained.

In State v. Johnson (1969), 77 Wash. 2d 423, 462

P. 2d 933, similar facts were presented. The defen-

dant, Johnson, was on trial for assault with intent to

kill. An accomplice, Zaabel, was incarcerated, with

two felony charges pending against him. To secure the

testimony of Zaabel in the trial of Johnson, the prose-

cuting attorney promised Zaabel immunity, and, dur-

ing the course of Johnson’s trial, secured a court order

dismissing both of Zaabel’s pending felony counts.

The Supreme Court of Washington rejected John-

son’s contention that Zaabel’s testimony was inadmis-

sible. The court stated, at pages 436-37:

“Defendant assigns error to the admission of

Zaabel’s testimony, contending that the promises of

immunity disqualified him as a witness and rendered

his testimony incompetent. He argues that, since the

prosecuting attorney did not have the power to grant

immunity in a case of attempted murder, his acts in

doing so were without authority in law and amounted

to coercion and bribery and a denial of due process of

law.

“The question of the validity of a promise of immu-

nity raised by this assignment of error is not squarely

before the court, for it is the defendant and not the

witness who is claiming the invalidity of that promise.

The question of whether there exists an equitable right

to an enforcement of this promise of immunity is not

present and would arise only if at some future time

the state should attempt to prosecute the witness on

either of the two dismissed charges.

“One of the sordid facts of life is that the most

33

cogent proof of guilt frequently derives from an evil

source. Criminals seem to know more about crimes

than good people, and the state must get its evidence

where it finds it.

“A promise of immunity by the state, therefore, for

the purpose of securing the testimony of one who has

testimonial knowledge of the crime charged but cannot

be compelled against his will to testify is not unknown

to the criminal law and does not ipso facto render the

testimony incompetent and inadmissible. If the prom-

ise is unenforceable but the promisee nevertheless be-

lieves or says he believes it was made in good faith—

even though both may be without legal power to bind

the state to it—making of the promise alone does not

render the witness incompetent or preclude his testi-

mony. The promise of immunity goes to the weight of

the testimony and may be considered by the jury in

determining what effect to give to the testimony of an

admitted accomplice. It is the jury and not the court

which weighs the evidence and determines to what ex-

tent the promise of immunity amounts to a reward or

threats and coercion in inducing the promisee witness

to waive his constitutional rights against self-incrim-

ination.

“As long as the jury is fully advised of the induce-

ments and the tests to which an accomplice’s testimony

should be subjected, the actions of the state in attempt-

ing to secure the testimony of an accomplice are

neither immoral nor unconscionable nor a denial of

due process of law. Statutes and appellate decisions

which provide for immunity in particular cases and

special circumstances and sustain convictions based on

the uncorroborated testimony of an accomplice have

long since met both the legal and the moral test. * * *”

34

State v. Crepeault (1976), 126 Vt. 338, 229 A. 2d

245, and State v. Reed (1969), 127 Vt. 532, 253 A. 2d

227, are in accord. In Crepeault, the Supreme Court of

Vermont stated, at pages 339-341:

“It appears in the record that the three participants

who testified against the respondent were assured by

the State’s attorney, in open court, that they would

not be prosecuted for their part in the offense. The

respondent complains that the prosecutor had no au-

thority to extend immunity to these witnesses and, in

doing so, his constitutional rights were invaded. The

question was presented during the course of the trial

and later renewed by the motion to set aside.

“In oral argument, counsel for the state conceded

that, in the absence of a statute to this effect, as prose-

cuting attorney he had no specific authority to confer

immunity on a witness called to testify concerning

conduct which might incriminate him. If properly

exercised, he did have authority to discontinue or with-

hold prosecution. See, in re Tomassi, 104 Vt. 34, 36,

156 Atl. 533; In re Garceau, 125 Vt. 185, 187, 212 A.

2d 633.

“In any event, the assurance affected the credibility

of these witnesses rather than their competency. An

accomplice who testifies against a confederate in the

hope of personal advantage is competent to do so even

though the prospect of reward may aciversely affect

his credibility. State v. James, 161 Me. 17, 206 A. 2d

410, 411; People v. Jones, 30 Ill. 2d 186, 195 N. E. 2d

698, 699; 23 C. J. S. Criminal Law Section 805; 58

Am. Jur. Witness Section 156.

‘cu * *

“The respondent further contends that the testimony

of the young accomplices was elicited in violation of

nti

35

their constitutional rights against self-incrimination.

The rights of the witnesses in this respect were care-

fully safeguarded. The fathers of the witnesses were

summoned and the trial court saw to it that the boys

and their parents had the benefit of the advice of

competent counsel before receiving their testimony.

“The right to assert the privilege, or waive it, is per-

sonal to the witness. The respondent is in no position to

assert the constitutional rights of others. These are

matters beyond his control. Hale v. Henkel, 201 U.S.

43, 50 L. Ed. 652, 663, 26 S. Ct. 370; State v. Geddes,

136 A. 2d 818, 819; State v. Desilets, 96 N. H. 245, 73

A. 2d 800, 801; 8 Wigmore, Evidence, Section 2270

(McNaughton Rev. 1961).”

We hold that appellant was not prejudiced by the

purported grant of immunity to witnesses Stroebel and

Johnston. That grant, although not authorized by law,

does not violate any right of the accused, because the

privilege against self-incrimination is personal to each

witness. A promise of immunity to a witness, when

fully disclosed to the jury, affects the weight to be

given testimony, not its admissibility.*

Appellant’s due process and equal protection conten-

tions are equally without merit.

Appellant asserts, in effect, that any process of nego-

tiation by which the state induces a witness to testify

is coercive, and renders any testimony thereby ob-

tained inadmissible. That is not so. The testimony of a

witness is not rendered inadmissible merely because he

* Though so holding, the court wishes to indicate its disapproval] of

the prosecutor’s decision to fail to advise witnesses Stroebel and John-

ston of their constitutional rights under Miranda v. Arizona (1966),

384 U. S. 436, for the purpose of granting immunity to, and obtaining

the testimony of, those witnesses. The members of the court do not

condone this conduct, and prosecutors and their staffs should hereafter

avoid such unseemly behavior.

36

expects or has been promised immunity from prosecu-

tion, a lesser penalty, or dismissal of a pending charge.

Caton v. United States (C. A. 8, 1969), 407 F. 2d 367,

371; Minkin v. United States (C. A. 9, 1967), 383 F.

2d 427, 428; Lyda v. United States (C. A. 9, 1963),

321 F. 2d 788, 794-795: United States v. Rainone

(C. A. 2, 1951), 192 F. 2d 860; State v. Wakinekona

(1972), 53 Hawaii 574, 577, 499 P. 2d 678. See

Lisenba v. California (1941), 314 U.S. 219, 227. Only

when vicience, turture or other form of inhumane coer-

cion permeates the process by which testimony is ob-

tained is that testimony inherently untrustworthy, and

its admission in violation of due process. Cases cited by

the appellant which illustrate this principle are distin-

guishable upon their facts from this cause.‘

* In Bradford v. Johnson (E. D. Mich. 1972), 354 F. Supp. 1331,

affirmed (C. A. 6, 1973), 476 F. 2d 66, testimony secured by blatant

torture was excluded. A witness, Payne, was questioned by police officers

and prosecutors during a period in which he was “denied food, water

and sleep, was physically abused and beaten about the face, sides

and genitals, was threatened and degraded by racial epithets, and was

threatened with the possible arrest of his wife and removal of his

children from his home.” Payne remained in the custody of the police

officers who had tortured and abused him until the date of the trial.

After testifying, he was returned to the custody of those officers.

In vacating petitioner Bradford’s conviction, the federal district

court stated, at page 1338:

“No court would knowingly allow the police or prosecutor to call

a person to testify who had no knowledge of the case and encourage

him to conjure testimony simply because the state needed a witness.

In effect, that is what happened here. Through the use of medieval

torture techniques Payne was asked to be the star witness with a re-

ward of cessation of pain and fear upon giving the proper testimony.

The real threat of further abuse was not removed. Under these cir-

cumstances, the use of knowingly coerced incrimination of another is

so patently untrustworthy that it rivals the knowing use of perjured

testimony. The petitioner ought, at least, under a system of rebuttable

presumption of innocence, to be given the safeguard of uncoerced,

untortured incrimination by another.”

In LaFrance v. Bollinger (D. Mass. 1973), 365 F. Supp. 198, re-

manded (C. A. 1, 1974), 499 F. 2d 29, also cited by appellant, an

37

Here, Hal Stroebel, while incarcerated in the Colum-

bus City Prison pending trial on a felony charge, initi-

ated discussions with police officers and the prose-

cuting attorney concerning a grant of immunity in

exchange for testimony. To bolster Stroebel’s bid for

leniency, his wife, Cindy, secured one or more tape

recordings implicating Donald Johnston in criminal

activity.” At the time those recordings were made,

Johnston was not incarcerated. When subsequently ar-

rested, and confronted with the recordings, Johnston

accepted an offer of immunity in exchange for testi-

mony. Johnston testified that during the period of

incarceration, he felt under “no more [pressure] than

normal.”

The facts surrounding the plea bargain of Lester

Compton are similar. Compton was incarcerated in

Columbus pending trial on a felony charge. Upon the

evidentiary hearing was ordered, to determine whether a statement made

by an accomplice to police officers, later repudiated by the accomplice

at trial, was involuntary as the product of suggestions and threats

by police at a time when the accomplice was undergoing withdrawal

from the use of drugs.

In People v. Underwood (1964), 61 Cal. 2d 113, 389 P. 2d 937, a

similar statement was excluded because the cammoplice had been in-

terrogated while intoxicated, and had made the statement only after

police officers had threatened, cursed, and frightened him.

Cf. United States v. Wolfe (C. A. 7, 1962), 307 F. 2d 798; People

v. Portellj (1965), 15 N. Y. 2d 235, 205 N. E. 2d 857, certiorari denied

(1966), 382 U. S. 1009. In Portelli, the New York Court of Appeals

ruled the testimony of an accomplice admissible, although a pretrial

statement consistent with that testimony, given to police officers eight

months previously, was the result of overnight custody, a severe beat-

ing, and torture. Unlike in LaFrance and Underwood, no attempt was

made in Portelli to introduce the pretrail statement in evidence.

* No evidence indicates that police officers participated in securing

the recording or recordings which incriminated Johnston. Regardless,

Johnston’s testimony would be admissible. See J'rocunier v. Atchley

(1971), 400 U. S. 446; Lewis v. United States (1966), 385 U. S. 206;

Osborn v. United States (1966), 385 U. S. 323; Hoffa v. United States

(1966), 385 U. S. 293; Lopez v. United States (1963), 373 U. S. 427.

38

advice of counsel (the appellant), Compton listened to

police officers but refused to talk to them. At some

point, according to Compton, the appellant asked him

to sign a statement to the effect that police officials

were attempting to “frame” appellant. Instead, Comp-

ton initiated a discussion with the prosecuting at-

torney concerning a plea bargain. He subsequently

pleaded guilty to a lesser included offense.

No evidence in this record suggests that police offi-

cers or prosecutors coerced statements or testimony

from Stroebel, Johnston, or Compton.

The pretrial statements given to prosecutors and

policemen by Stroebel, Johnston, and Compton were

examined by the trial court pursuant to Crim. R. 16

(B)(1)(g). No inconsistencies between those state-

ments and the testimony given at appellant’s trial

were discovered.

We hold that the testimony of Stroebel, Johnston,

and Compton was not the product of coercion, and that

its introduction in evidence cid not violate appellant’s

right to due process of law.

Finally, appellant asserts that the decision to prose-

cute him, as opposed to Stroebel, Johnston, and Comp-

ton, was without a rational basis, and therefore in

violation of the equal protection clause of the federal

Constitution.

The discretion vested in a public prosecutor to exer-

cise selectivity in the enforcement of criminal statutes

will not be overturned unless that selection is “‘delib-

erately based upon an unjustifiable standard such as

race, religion, or other arbitrary classification.”’ Oyler

uv. Boles (1962), 368 U.S. 448, 456: United States v

Alarik (C. A. 8, 1971), 439 F. 2d 1349, 1350-1351;

United States v. Cacco (C. A. 9, 1970), 428 F. 2d 264,

39

271; Newman v. United States (C. A. D. C., 1967),

382 F. 2d 479. Appellant makes no showing that his

selection for prosecution was based upon race, religion,

or other suspect or arbitrary classification. Therefore,

his claim to a denial of equal protection is without

merit.°

Il.

Appellant assigns as error the admission in evidence

of testimony concerning his alleged commission of

crimes other than those named in the indictments, and

of testimony which suggested that he had ‘‘fixed” cases

in Franklin County courts. Although no objection to

the introduction of this evidence was made at trial,

appellant argues that it should be excluded upon ap-

peal pursuant to Crim. R. 52(B).

Prior to the adoption of Crim. R. 52(B), Ohio ap-

pellate courts would not consider ‘‘any error which

counsel for a party complaining of the trial court’s

attention at a time when such error could have been

avoided or corrected by the trial court.” State v. Gor-

don (1971), 28 Ohio St. 2d 45; State v. Lancaster

(1971), 25 Ohio St. 2d 83; State v. Glaros (1960), 170

Ohio St. 471. “Any other rule,” we stated in State v.

Driscoll (1922), 106 Ohio St. 33, 39, “would relieve

counsel from any duty or responsibility to the court

and place the entire responsibility upon the trial court

to give faultless instructions upon every possible fea-

ture of the case, thereby disregarding entirely the true

relation of court and counsel which enjoins upon coun-

® The record discloses that Stroebel, Johnston, and Compton impli-

cated numerous persons in criminal activity. A Columbus police officer

testified that Stroebel and Johnston implicated 40 or 50 different

individuals. The prosecuting attorney, in his brief to this court, states

that based upon the testimony of Stroebel, Johnston, and Compton,

the Franklin County Grand Jury returned indictments against 41!

separate individuals, totaling 178 counts.

40

sel the duty to exercise diligence and to aid the court

rather than by silence mislead the court into commis-

sion of error.”’

Crim. R. 52(B), effective July 1, 1973, alters this

practice. It specifically provides that “[p]lain errors

or defects affecting substantial rights may be noticed

although they were not brought to the attention of the

court.” The rule’s purpose is to safeguard the right of

a defendant to a fair trial, notwithstanding his fail-

ure to object in timely fashion to error at that trial.

However, “[t]he plain error rule was intended to be

and should be applied to serve rather than subvert the

ends of justice. The rule is to be invoked only in excep-

tional circumstances to avoid a miscarriage of justice.”

a v. United States (C. A. 5, 1968), 398 F. 2d 485,

In this case, the testimony to which error is now as-

signed was admitted in evidence without objection. We

conclude, from the record, that this omission was the

result of a deliberate, tactical decision of trial counsel.

This fact appellant concedes, at page 28 of his Memo-

randum in Support of Jurisdiction, filed with this

court on December 23, 1974. Appellant and his counsel

apparently believed that the admission of the evidence

in question would so detract from the credibility of

witnesses Stroebel, Johnston, and Compton as to ren-

der their entire testimony incapable of belief. Appel-

lant cannot now claim the protection of Crim. R. 52

(B) to negate the effect of this tactical decision.’

Two federal cases support this interpretation of

Crim. R. 52(B). In Marshall v. United States (C. A. 9,

1969), 409 F. 2d 925, the Court of Appeals stated, at

page 927:

“While Rule 52(b) may be invoked when the court

* Appellant has not alleged, nor would the record support a finding

of, incompetence of counsel.

41

believes that a party should not be unalterably and

unfairly prejudiced by inadvertent or ignorant mis-

takes of his counsel, it is not invoked where, as here,

the failure to object may have been deliberate and in

furtherance of legitimate trial tactics. In such a case,

the concern for orderly administration of justice is

paramount and should control except when the integ-

rity of the judicial process itself would otherwise suf-

fer. See Ladakis v. United States, 283 F. 2d 141 (10th

Cir. 1960).”’

In Ladakis, the court held, at pages 143-144:

“Counsel for Ladakis assert that the error resulting

from the admission of Robinson’s testimony was so

serious that this court should notice it of its own mo-

tion. In criminal cases involving the life or liberty of

the accused, the appellate courts of the United States

may notice and correct grave errors which seriously

affect substantial rights of the accused, although not

challenged by objection or motion in the trial court.

[Fed. Rules Crim. Proc., Rule 52(b).] We do not

regard this as such a case.

“Moreover, ordinarily a court will not notice alleged

error of its own motion where, as here, the failure to

object in the trial court was not due to inadvertence.

Furthermore, in the instant case the action of the trial

court upon which the claim of error is predicated was

acquiesced in and silently approved by counsel for the

complaining party.”’

We hold that Crim. R. 52(B) may not be invoked to

exclude allegedly prejudicial testimony to the admis-

sion of which no objection was made at trial as a delib-

erate tactic of counsel.

Ill.

Appellant assigns as error a response by the trial

judge to a question propounded by the jury during the

course of its deliberations. He further asserts that his

42

conviction upon each of four counts was not supported

by the weight of the evidence.

A.

At the close of the first day of its deliberations, the

jury submitted two questions in writing to the trial

judge. One question stated:

“Does receiving and concealing extend to the point

of materially benefitting from the act without physical

possession of the merchandise?”

The judge, in writing, responded :

“Not necessarily. To prove the receipt of stolen prop-

erty it is not necessary to show that it came into the

actual or manual possession of the defendant. It is suf-

ficient in that regard to show it came into the custody

or control of the defendant so that he could direct the

(disposal of it. The mere fact, however, that the prop-

erty was in the possession of the defendant, if such

should be the fact, would not alone constitute the re-

ceiving of the property. Receiving implies some act on

the part of the defendant by which the property came

into his possession with his knowledge, consent, and

approval.”

This response is a correct statement of law. The

“prevailing rule at common law and in most jurisdic-

tions is that actual physical possession is not a requisite

of receiving. Possession may be constructive.” State rv.

Bozeyowski (1962), 77 N. J. Sup. 49, 57, 185 A. 2d

393, certiorari denied (1963), 374 U.S. 851: Gordon

v. State (1927), 6 Ohio Laws Abs. 87; United States v.

Parent (C. A. 7, 1973), 484 F. 2d 726: State v. Martin

(1973), 190 Neb. 212, 206 N. W. 2d 856; Eliason v.

State (Alaska, 1973), 511 P. 2d 1066: State v. Hart

(1972), 14 N. C. App. 120, 187 S. E. 2d 351; United

States v. Cousins (C. A. 9, 1970), 427 F. 2d 382; State

v. Ashby (1969), 77 Wash. 2d 33, 459 P. 2d 403:

Weddle v. State (1962), 228 Md. 98, 178 A. 2d 882.

43

Constructive possession exists when an individual ex-

ercises dominion and control over an object, even

though that object may not be within his immediate

physical possession.

Appellant places great stress upon the first two

words employed by the trial court in its response to

the jury’s question. Those words were neither confus-

ing nor prejudicial. The words “[n]ot necessarily”

indicated that while a material benefit alone was in-

sufficient to constitute receipt, physical possession of

the property itself was not required. The court’s re-

sponse to the question was proper.

B.

This court is not required to review the weight of

evidence in a criminal case. “This court may, however,

examine the record with a view of determining

whether the proper rules as to the weight of the evi-

dence and degree of proof have been applied.” State v.

Martin (1955), 164 Ohio St. 54, 57.* In the syllabus to

* Absent a statute which provides otherwise, a criminal conviction

in this state may be based solely upon the uncorroborated testimony of

an accomplice. State v. Flonnory (1972), 31 Ohio St. 2d 124; Beckman

v. State (1930), 122 Ohio St. 433; State v. Lehr (1918), 97 Ohio St. 280;

Allen v. State (1859), 10 Ohio St. 287. At the time of appellant’s

trial, statutory proscriptions were contained only in R. C. 2945.60

(treason), R. C. 2945.61 (misprision of treason), R. C. 2945.62 (per-

jury), and R. C. 2945.63 (seduction of a female). None are relevant

to disposition of this cause.

The Ohio rule regarding corroboration of accomplice testimony is

in accord with the federal rule, Caminetti v. United States (1917), 242

U. S. 470, 495; United States v. Miceli (C. A. 1, 1971), 446 F. 2d 256,

258-259; United States v. Corallo (C. A. 2, 1969), 413 F. 2d 1306, 1323;

United States v. De Larosa (C. A. 3, 1971), 450 F. 2d 1057, 1060-1061;

United States v. Miller (C. A. 4, 1971) 451 F. 2d 1306, 1307; United

States v. Beasley (C. A. 5, 1975), 519 F. 2d 233, 242; United States

v. Willis (C. A. 6, 1973), 473 F. 2d 450, 454; United States v. Adams

(C. A. 7, 1972), 454 F. 2d 1357, 1360; United States v. Dunn (C. A. 8,

1974), 494 F. 2d 1280, 1281-1282; United States v. Sacco (C. A. 9,

1974), 491 F. 2d 995, 1003-1004; United States v. Downen (C. A. 10,

1974), 496 F. 2d 314, 318; United States v. Lee (C. A. D. C., 1974),

506 F. 2d 111, 118, and with the rule in 47 of 49 states.

Twenty-nine states do not require corroboration of accomplice

44

State v. DeHass (1967), 10 Ohio St. 2d 230, we stated:

testimony. People v. Martinez (Colo. 1975), 531 P. 2d 964, 965; State

v. LaFountain (1954), 140 Conn. 613, 616, 620-621, 108 A. 2d 138;

O'Neal v. State (Del., 1968), 247 A. 2d 207, 210; Anderson v. State

(Florida, 1970), 241 So. 2d 390, 396; Scott v. State (1972), 229 Ga.

541, 545, 192 S. E. 2d 367; Cf. Famber v. State (1975), 134 Ga. App.

112, 213 S. E. 2d 525 (Ga. Code Ann. 38121); State v. Carvelo (1961),

45 Hawaii 16, 42, 361 P. 2d 45; People v. Mentola (1971), 47 Ill. 2d

579, 583, 268 N E. 2d 8; Newman v. State (Ind. 1975), 334 N. E.

2d 684, 687; State v. Bey (1975), 217 Kan. 251, 260, 535 P. 2d 881;

State v. Matassa (1952), 222 La. 363, 379, 62 So. 2d 609; State v. Smith

(Me. 1973), 312 A. 2d 187, 188; Commonwealth v. French (1970), 357

Mass, 356, 396, 259 N. E. 2d 195; People v. DeLano (1947), 318 Mich.

557, 567-658, 28 N. W. 2d 909; Saunders v. State (Miss. 1975).

313 So. 2d 398, 400; State v. Lang (Mo., 1974), 515 S. W. 2d 507, 509;

State v. Oglesby (1972), 188 Neb. 211, 212, 195 N. W. 2d 754; State

v. Rumney (1969), 109 N. H. 544, 545, 258 A. 2d 349; State v. Begyn

(1961) 34 N. J. 35, 54, 167 A. 2d 161; State v. Maes (1970), 81 N.

M. 550, 554, 469 P. 2d 529; State v. MeNair (1967), 272 N. C. 130,

132, 157 S. E. 2d 660; Commonwealth v. Bradley (1972), 449 Pa. 19,

21-22, 295 A. 2d 842; State v. Pella (1966), 101 R. I. 62, 69, 220

A. 2d 226; State v. Steadman (1972), 257 S. C. 528, 537-588, 186 S. E.

2d 712; State v. Crepeault (1967), 126 Vt. 338, 341-342, 229 A. 2d 245;

Brown v. Commonwealth (1968), 208 Va. 512, 515, 158 S. E. 2d 663;

State v. Johnson (1969), 77 Wash. 2d 423, 439, 462 P. 2d 933; State v.

Humphreys (1945), 128 W. Va. 370, 375-376, 36 S. E. 2d 469; Kutchera

v. State (1975) 69 Wis. 2d 534, 230 N. W. 2d 750, 758; Loddy v.

State (Wyoming, 1972), 502 P. 2d 194, 196.

In 17 states, corroboration is required by statute. Ala. Code, Title

15, Section 307; Alaska Stats., Title 12, Section 45.020: Arizona Rev.

Stats., Section 13-136; Ark. Stats., Section 43-2116; Idaho Code, Sec-

tion 19-2117; Iowa Code Anno., Section 782.5; Minn. Stats. Anno.,

Section 634.04; Mont. Rev. Code Anno., Section 94-7220; McKinney’s

Consol. Laws of N. Y., Anno., Crim. Proc. Law, Section 60.22: N. D.

Cent. Code Anno., Title 29, Section 21-14; Okla. Stats. Anno., Title 22,

Section 742; Ore. Rev. Stats., Section 136.440; S. D. Comp. Laws

Anno., Title 23, Section 44-10; Vernon’s Tex. Stats. Anno., Code Crim.

Proc., Art. 38.14; Utah Code Anno. 1953, Title 77, Section 31-18.

Cf. West’s Anno. Calif. Code, Penal, Section 1111 and Nev. Rev. Stats.,

Section 175.291, which define an accomplice as “one who jis liable to

prosecution for the identical offense charged against the defendant

on trial in the cause in which the testimony of the accomplice is given.”

(Emphasis added.)

In Kentucky, corroboration is required by Crim. R. 9.62, which

incorporated the substance of Crime Code Sections 241 and 242.

In Maryland and Tennessee, corroboration is required by judicial

decision. See Watson v. State (1955), 208 Wd. 210, 217, 117 A. 2d 549;

State v. Fowler (1963), 213 Tenn. 239, 245-246, 373 S. W. 2d 460.

- ate bes 04+

45

“1. On the trial of a case, either civil or criminal,

the weight to be given the evidence and the credibility

of the witnesses are primarily for the trier of fact.

“9. A reviewing court may not reverse a judgment

of conviction in a criminal case in a trial court, where

the record shows that a verdict of guilty was returned

by a jury on sufficient evidence and where no prejudi-

cial error occurred in the actual trial of the case or in

the instructions given the jury by the court.”

See Scaccuto v. State (1928), 118 Ohio St. 397;

Breese v. State (1861), 12 Ohio St. 146.

Here, appellant’s convictions upon two counts of re-

ceiving stolen antique glassware, and upon one count

of receiving a stolen clock, lamp, table, and music box,

are fully supported by the evidence. Probative evi-

dence was directed to each element of those crimes.

That evidence, if believed by the jury, was sufficient to

establish appellant’s guilt beyond a reasonable doubt.

The same is true of appellant’s conviction for receiv-

ing two Mark 12(A) airplane radios. The record dis-

closes that appellant served as attorney and advisor to

one Michael Casurta, who operated a flying school.

Stroebel testified that appellant offered to buy airplane

radios if Stroebel and Johnston would steal them.

Stroebel, Johnston, Casurta, and appellant met at Port

Columbus airport, where Casurta showed Johnston

how to disconnect and remove radios from airplanes.

Stroebel, Johnston, and Stroebel’s wife, Cindy, drove

to the Zanesville airport, where they stole the radios.

Johnston delivered the radios to Casurta at the flying

school, and was paid by Casurta for his services.

Stroebel testified that he received nothing for his part

in the robbery because he owed appellant attorney fees.

This testimony, if believed by the jury, was sufficient

to sustain appellant’s conviction. Possession of stolen

property may be individual or joint, actual or con-

structive. Proof of control or dominion is essential.

46

But control or dominion may be achieved through the

instrumentality of another.

The judgment of the Court of Appeals is affirmed.

Judgment affirmed.

O’NEILL, C. J., HERBERT, CORRIGAN, STERN, CELE-

BREZZE, and W. BROwN, JJ., concur.