Petition — BLACK v. OHIO (No. 76-6547)
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76- 6547).
OCTOBER TERM, 1976 [ RECEIVED
APR 1 3 1977
OFFICE OF THE CLERK
SUPREME COURT, U.S.
wo. “[1,-lLS +7
JESSE BLACK, Petitioner
-VEee-
STATE OF OHIO, Respondent
The Ohio State University
College ef Law
1659 North High Street
Columbus, Ohio 43210
(614)422-6821
DENNIS N. BALSKE
Clinical Programs
The Ohio State University
College of Law
1659 North High Street
Columbus, Ohio 43210
(614) 423-6821
CHRIS BLAIR
Ohio Public Defenders Association
8 E. Long Street, Room 519
Columbus, Ohio 43215
COUNSEL FOR PETITIONER
.
TABLE OF CONTENTS
I. OPINIONS BELOW. . 2.1. 2+ e+e eee se eeves 1
II. JURISDICTION . . 1. 26 ss ee es eo we we we we oes 1
ITI .QUESTIONS PRESENTED... +++ ++ eee @ » 2
IV. CONSTITUTIONAL AND STATUTORY PROVISIONS .. . 3
V. STATEMENT OF THE CASE ....++ ++ e+e © @ 3
VI. REASONS FOR GRANTING THE WRiT .... +++ > 13
A. UNDER ANY OF THE CURRENT STANDARDS FOR
DETERMINING EFFECTIVE ASSISTANCE OF COUNSEL
IN A CRIMINAL CASE, A TRIAL ATTORNEY DEPRIVES
HIS CLIENT OF HIS $IXTH AMENDMENT RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL WHERE (1)
ADMITS HIS CLIENT'S GUILT DURING 0
STATEMENT AND CLOSING ARGUMENT (2) INTRODUCES
HIS CLIENT'S PRIOR FELONY RECORD
EVIDENCE AT THE CONCLUSION OF THE TRIAL,
EVEN THOUGH THE RECORD WAS INADMISSIBLE AS
THE CLIENT DID NOT TESTIFY (3) FAILS TO
RECOGNIZE A FOURTH — VIOLATION WHICH
COULD HAVE BARRED THE ADMISSION OF HIS
CLIENT'S CONFFSSIONS 4) FAILS TO OBJECT
TO PREJUDICIAL a IBLE HEARSAY AND
OPINION TESTIMONY OF PROSECUTION WITNESSES
(5) BRINGS OUT PREVIOUSLY UNRELATED AND
EXTREMELY DAMAGING EVIDENCE DURING CROSS-
EXAMINATION OF PROSECUTION WITNESSES (6)
NEVER HAS HIS CLIENT EVALUATED BY A E
EXPERT TO DETERMINE HIS COMPETENCY TO STAND
TRIAL, SANITY OR, FOR THE PRESENCE OF A
STATUTORY MITIGATING FACTOR WHICH WOULD HAVE
PRECLUDED THE DEATH PENALTY, THOUGH THE CLIENT
HAD BEEN DETERMINED TO BE MENTALLY DEFICIENT
BY A COURT-APPOINTED PSYCHIATRIST, AND (7
DEMONSTRATES A GENERAL UNAWARENESS OF L,
TRIAL AND POST-TRIAL PROCEDURES GOVERNING TRIAL
OF CRIMINAL CASES IN OHIO. ........+-. 13
B. OHIO REVISED CODE SECTIONS 2929.03(E) AND
2929.04(B) VIOLATE DUE PROCESS OF LAW UNDER THE
AMENDMENT TO THE UNITED STATES
CONSTITUTION BY PLACING ON THE DEFENDANT THE
BURDEN OF PROVING BY A PREPONDERANCE OF THE
EVIDENCE THAT HE SHOULD NOT BE EXECUTED, . . 20
C. OHIO'S DEATH PENALTY SCHEME IS UNCONSTITUTIONAL,
CONSIDERING THE ILLUSORY NATURE OF SOME OF THE
SPECIFIED MITIGATING FACTORS, THE NARROW SCOPE
OF WHAT REMAINS AND THE IRRELEVANCE OF NON-
SPECIFIED FACTORS AND THE FACT THAT OHIO DOES
NOT HAVE A SYSTEM OF APPELLATE REVIEW OF ALL
DEATH SENTENCES WHICH INCLUDES A COMPARISON
OF CASE BY CASE FACTS TO INSURE THAT A DEATH
SENTENCE IN A PARTICULAR CASE IS WARRANTED. . 22
D. THE STATE HAS NOT ESTABLISHED ITS BURDEN OF
PROVING A VOLUNTARY, KNOWING AND INTELLIGENT
WAIVER BY THE DEFENDANT OF HIS FIFTH, SIXTH,
AND FOURTEENTH AMENDMENT RIGHTS, PRIOR TO
SECURING A CONFESSION, IN LIGHT OF NUMEROUS
ARRESTS, LENGTHY INTERROGATIONS, PERSISTENT
REFUSALS BY THE DEFENDANT TO SIGN A RIGHTS
WAIVER FORM OR MAKE A STATEMENT, AND THE
DENIAL OF DEFENDANT'S REQUEST TO SPEAK WITH
| 9. sai eee ae ee ee ee 25
i
—— -
TABLE OF CONTENTS (continued)
VII - CONCLUSION . . . . . . . . . . . . . . . > . .
Appendix:
Judgment and Sentence of Court of Common
A.
Pleas, Richland County, Ohio
inion of the Court of Appeals of
hland County, Ohio... .
Opinion of the Ohio Supreme Court ....
Order of Ohio Supreme Court Denying a
Rehearing
Order of Ohio Supreme Court Staying
Execution . 7 . . . . . . . . . . . . . +
Ohio Statutory Provisions. ...
ii
Cases
Avery v. Alabama, 308 U.S. 444 (1940) ........ 15
pean) United States, 491 F.2d 687 (6th Cir.
. . . . . * . . . . * . * . . . . . . . . 14
Blackburn v. Alabama, 361 U.S. 199 (1960) ...... 26
Brewer v. Williams, 20 Cr. L. 3095 (1977) ...... 27, 28
Brookhart v. Janis, 384 U.S. 1 (1966) ........ 27
Brown v. Beto, 377 F.2d 950 (5th Cir. 1967) ..... 14
Brown v. Illinois, 422 U.S. 590 (1975) ....... 16
les v. Peyton, 389 F.2d 224 (4th Cir. 1968)... . 14
Diggs v. ch, 148 F.2d 667 (D.C. Cir.), cert. den.
325 US a9 (1945) = erie age *)» Sere ea
Drope v. Missouri, 420 U.S. 162 (1975) ....... 18
Escobedo v. Illinois, 378 U.S. 478 (1964) .... . . 26,27
Green v. Rundle, 434 F.2d 1112 (3rd Cir. 1970)... 14
Gregg v. Georgia, 96 S.Ct. 2909 (1976) ....... 24
Jackson arden, Nevada State Prison, 537 P.2d
coe eo eee ee ero e ese o es 1b
Johnson v. Zerbst, 304 U.S. 458 (1938) ....... 28
Jones v. Huff, 152 F.2d 14 (D.C, Cir, 1945) ..... 14
Jones v. Smyth, 176 F.Supp. 949 (E.D.Va. 1959)... 15
Jurek v. Texas, 96 S.Ct. 2950 (1976) ........ 25
ce v. Overlade, 244 F.2d 108 (7th Cir. 1957) . . . 14
Massiah v. United States, 377 U.S. 201 (1964) . ... 27
Matthews ¥ ted States, 449 F.2d 985 (D.C.
Ze
. . . . . . . . . 7 . . . . . . . . 7. 15
McKenna v. Ellis, 280 F.2d 592 (Sth Cir. 1960)... 14
McQueen v. Swenson, 498 F.2d 207 (8th Cir. 1974) . . 14
Michigan v. Mosley, 423 U.S. 96 (1975) ....... 26
Miranda v. Arizona, 384 U.S. 436 (1966) . .... + » 26,27,28
Moore ¥. United States, 432 F.2d 730 (3rd Cir.
97 . . + . . . . . . . . . . . . . . . . * 7 14
Mullaney v. Wilbur, 421 U.S. 684 (1975) ...... 20,21,22
Nardone v. United States, 308 U.S. 338 (1939) .... 16
People v. Blevins, 251 Ill. 381, 96 N.E.2d 4 (1911) . 16,17
People v. Nitti, 312 I11. 73, 143 N.E.448 (1924) .. 17
iii
TABLE OF AUTHORITIES (continued)
Page
People vy: 34 Cal. App.3d 370, 108
1 . (1973) . . . . . . . . > ° . . 31
Proffitt v. enti, 96 $.Ct. 2967 (1976) ..... 25
Roberts v. Louisiana, 9 S.Ct. 3001 (1976) ..... 23
Schneckloth v. Bustamonte, $12 U.S. 218 (1973)... 26
State v. Bayless, 48 Ohio St.2d 73 (1976). .... 24
tate v. Rell, 48 Ohio St.2d 270 (1976) ...... 24
tate v. Harper, 57 Wis. 2d 543, 205 N.W.2d (1973) . 14
tate v. He o ome St.2d 71, 341 N.E.2d 304
(197 >. . >. . >. >. . >. >. . > . >. 7. . 7 7: 14
State vy. e, 192 Neb. 485, _ BoM. 2d .
State v. Lockett, 49 Ohio st.2d 48 (1977) ..... 15
State v. Staten, 18 Ohio st.2d 13 (1969) ...... 23
State v. Thomas, 203 S.E.2d 445 (W.Va. 1974)... . 14
tate v. Woods, 48 Ohio St.2d 127 (1976) ..... + 24,25
oley v. Rose, 507 F.2d 414 (6th Cir. 1974).... 19
United States " DeCoster, 487 F.2d 1197 (D.C.
Be
° . . . . 7 . > . o . . . . . . + . . 14
ited States v. DeCoster II, 20 Cr. L. 2080 (1976) . 14
ited v. Elkanis, 528 F.2d 236 (9th Cir. P
Washington v. Texas, 388 U.S. 14 (1967) ....+.+-+ 19
Weeks v. United states, 232 U.S. 385 (1914) .... 16
Whitely v. Warden, 401 U.S. 560 (1971) .....-s 16
In re Winship, 397 U.S. 358 (1970) .....+.+. +. 20,21,22
Wong Sun v. United States, 371 U.S. 471 (1963)... 16
Woodson v. North Carolina, 428 U.S. 280 (1976) .. . 22,23
Statutes
Ohio Revised Code, Section 2929.03(E) .....++-+ + 20
Ohio Revised Code, Section 2929.04(B) .... +++ + 20,22,24
Ohio Revised Code, Section 2929.04(A) . . « « + . &
Other Authorities
oe eo
iv
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1976
JESSE BLACK, Petitioner
-Vs-
STATE OF OHIO, Respondent
—_—
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF OHIO
Petitioner prays that a writ of certiorari issue to review
the judgment of the Supreme Court of Ohio, entered in the above-
entitled case on January 14, 1977.
I. OPINIONS BELOW
The judgment and sentence of the Court of Common Pleas of
Richland County, Ohio is not reported. A copy is attached as
Appendix A.
The opinion of the Court of Appeals of Richland County,
Ohio aleo is not reported. A copy is attached as Appendix B.
The opinion of the Supreme Court of Ohio, State v. Black,
48 Ohio St.2d 262, 358 N.E.2d 551 (1976), is attached as
Appendix C, The judgment and order of the Supreme Court of
Ohio, dated January 14, 1977, is attached as Appendix D.
II. JURISDICTION
The date of the judgment of the Supreme Court of Ohio,
which this petition seeks to have reversed, is January 14,
1977 (Appendix D).
This Court has jurisdiction to review the judgment of the
Supreme Court of Ohio pursuant to 28 U.S.C. §1257(3).
Cc.
FOR THE PRESENCE Of A STATUTORY MITIGATING FACTOR WHICH
WOULD HAVE PRECLUDED THE DEATH PENALTY, THOUGH THE CLIENT
HAD BEEN DETERMINED TO BE MENTALLY DEFICIENT BY A COURT-
APPOINTED PSYCHIATRIST, AND (7) DEMONSTRATES A GENERAL
UNAWARENESS OF PRETRIAL, TRIAL AND POST-TRIAL PROCEDURES
GOVERNING TRIAL OF CRIMINAL CASES IN OHIO?
WHETHER OHIO REVISED CODE SECTIONS 2929.03 (E) AND
2929.04(B) VIOLATE DUE PROCESS OF LAW UNDER THE FOUR-
TEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION BY
PLACING ON THE DEFENDANT THE BURDEN OF PROVING BY A
PREPONDERANCE OF THE EVIDENCE THAT HE SHOULD NOT BE
WHETHER OHIO'S DEATH PENALTY SCHEME IS CONSTITUTIONAL
CONSIDERING THE ILLUSORY NATURE OF SOME OF THE SPECIFIED
WHETHER THE STATE HAS ESTABLISHED ITS BURDEN OF PROVING
A VOLUNTARY, KNOWING AND INTELLIGENT WAIVER BY THE
DEFENDANT OF HIS FIFTH, SIXTH, AND FOURTEENTH AMENDMENT
RIGHTS, PRIOR TO SECURING A CONFESSION IN LIGHT OF
NUMEROUS ARRESTS
IV. CONSTITUTIONAL AND STATUTORY PROVISIONS
A. This case involves the Fourth, Fifth, Sixth, Eighth,
and Fourteenth Amendments to the United States Constitution.
B. This case also involves the following provisions of
Ohio law, the text of which is set forth verbatim in Appendix
E:
(1) Ohio Revised Code, Section 2903.01 Aggravated
Murder; Title 29, Page's Ohio Revised Code, Page 15.
(2) Ohio Revised Code, Section 2903.02 Murder;
Title 29, Page's Ohio Revised Code, Page 20.
(3) Ohio Revised Code, Section 2903.03 Voluntary
Manslaughter; Title 29, Page's Ohio Revised Code, Page 23.
(4) Ohio Revised Code, Section 2903.04 Involuntary
Manslaughter; Title 29 Page's Ohio Revised Code, Page 23.
(5) Ohio Revised Code, Section 2923.03 Complicity;
Title 29, Page's Ohio Revised Code, Page 134.
(6) Ohio Revised Code, Section 2929.02 Penalties
For Murder; Title 29, Page's Ohio Revised Code, Page 152.
(7) Ohio Revised Code, Section 2929.03 Imposing
° Sentence For A Capital Offense; Title 29, Page's Ohio
Revised Code, Page 153.
(8) Ohio Revised Code, Section 2929.04 Criteria
For Imposing Death or Imprisonment for A Capital Offense;
Title 29, Page's Ohio Revised Code, Page 154.
V. STA THE E
Petitioner, Jesse Black, was tried in the Common Pleas
Court of Richland County and found guilty of two counts of
aggravated murder in May of 1974. On July 8, 1974 petitioner,
a mentally retarded black, with an IQ of 68, was sentenced to
death.
A. The Numerous Arrests and Interrogations
Petitioner's conviction stemmed from the January 21,
1974 shootings of Olga Laderman and Robert Staples. The Lader-
man shooting occurred at approximately 4:00 P.M. at the Bel-Aire
Motel, and the Staples shooting occurred at approximately 6P.M.
at the Staples Beer Dock, both in Richland County, Ohio.
e$Z-«
Petitioner, Jesse Black, was arrested on January 22, 1974
as a result of the "stake-out" of a red Mercury Cougar auto-
mobile, owned by luis girlfriend and tied to the shootings by
statements of witnesses as well as by an anonymous phone call .
te the police. This arrest took place at 8:13 A.M. (Mot. 104)~
After arresting officers cenducted a search of the automobile,
Jesse was taken to police headquarters (Tr. #1, 106).
Petitioner was held in custody until 5:30 P.M. on January
22 (Mot. 106). During this time period Jesse appeared in a
lineup, at approximately 11:00 A.M. (Mot. 52; Tr. #2, 439) and
a shoe showup (Mot. 53, Tr. #2, 443), took a polygraph test,
at 4:13 P.M. (Mot. 55; Tr. #2, 444), and underwent three hours
and twenty minutes of questioning, from 1:20 to 4:40 P.M.
(Tr. #2, 487). No identification of the petitioner was made
(Mot. 52, 54; Tr. #2, 442-3), and petitioner denied involvement
in both shootings (Tr. #2, 487). Jesse was also fingerprinted
and photographed during his approximately nine and one half
hours in custody (Tr. #2, 446).
Jesse was arrested for the second time on January 28, 1974
at 6:14 P.M. (Mot. 106). This time he was held and interrogated
for almost two days, his release not coming until January 30 at
9:20 A.M. (Mot. 106). Police questioned him intermittently
during this period with respect to the two shootings (Mot.
117-8). One such interrogation took place from approximately
9:00 to 11:00 P.M. on January 28, during which time petitioner
refused to sign a rights waiver card and continually stated
"no comment on advice of attorney" (Mot. 61; Tr. #2, 450).
Additionally, petitioner informed police officials of the
identity of his attorney at this time (Mot. 61).
Petitioner was arrested for the third time on January 31,
1977 at approximately 11:00 P.M. for reckless operation of a
motor vehicle (Mot. 118). His attorney went to the police
station, and petitioner was released shortly thereafter (Mot.
118). His atterney was given a court appearance date of
1/ The transcript of this case consists of five volumes, as
follows: Motion to eer hereinafter Mot.; Voir Dire,
hereinafter V.; Trial (2 volumes), hereinafter Tr. #1,2;
and Mitigation Hearing, hereinafter Mitig.
=F =”
February 5, of which he neglected to advise Jesse (Mot. 119).
Having not been advised of the date for his court appearance,
neither Jesse nor his counsel appeared on February 5. Consequen-
tly, a bench warrant for Jesse's arrest was issued on February
5 (Mot. 119). on February 6 petitioner appeared in court with
counsel, and the bench warrant was set aside (Mot. 119; Mot.
Defense Exhibit #1).
Pursuant to the February 5 bench warrant, which had been
set aside on February 6, police arrested Jesse for the fourth
time on February 11, 1977 at 10:12 A.M. (Mot. 106). During the
course of this arrest police officers discovered a roach
(cigarette butt of marijuane) in petitioner's coat pocket and
subsequently charged him with possession of marijuana (Mot. 120).
Twelve minutes later, at 10:24 A.M., police officers began
interrogating Jesse about the January 21 shootings (Mot. 37).
The interrogating officer, Charles Hriesik, read the petitioner
his rights from a card, but he refused to sign the waiver portion
of the card and refused to make any statement about either
shooting (Mot. 37). After one and a half hours ef questioning,
petitioner was taken from the lineup room to a cell. (Mot. 39).
Less than two hours later, at 1:45 P.M., the same officer,
Hriesik, had petitioner brought back from his cell to the lineup
room for further questioning (Mot. 39). After being advised of
his rights, Jesse again refused to sign a rights waiver and
refused to make a statement (Mot. 39, 62, 75). Upon request he
was permitted to phone a friend, his attorney and his father,
but was unable to reach any of them (Mot. 40, 63). More
specifically, he could not reach any of these people, but did
reach his lawyer's office, as epposed to his lawyer himself,
and he continued to refuse to give any statement to the police
(Mot. 82).
Having had no success obtaining a statement from
petitioner on February 11, investigating officers resumed
questioning on the morning of February 12 at 8:15 A.M. (Mot. 4).
Two officers questioned Jesse until 8:40 A.M., during which time
he again refused to sign a rights waiver and refused to make a
statement (Mot. 5-6, 21-2; Tr. #2, 485). According to one of
= 2
we O-s3Cers, Jesse might heve asked to contact his lawer and
might have stated that his lawyer tulad Dim tu mete Ww siucy
ment during the course of this interrogation (Mot. 22-3).
Having not again succeeded in attempting to obtain a right:
waiver from Jesse, police next brought in one of his friends,
Jimmie Eatmon, to confront him with what Eatmon knew of Jesse's
involvement in the shootings (Mot. 7, 41). Eatmon, however,
himself refused to make a statement and asked to call his
attorney (Mot. 8, 41; Tr. #2, 424). -Eatmon left this small
interview room to phone his attorney. Shortly thereafter,
Eatmon returned to this small interview room and told Jesse
that he had told police what he knew about the shootings and
would testify to what he knew in court (Mot. 28, 41). As with
the earlier requests of the police that he waive his rights and
make a statement, petitioner made no statement in response to the
remarks of Eatmon (Mot. 29, 42). Jesse was thereupon returned
to his cell, at approximately 9:15 A.M. (Mot. 29, 42).
At 10:15 A.M. these same two officers, Butler and Hriesik,
once again removed petitioner from his cell (Mot. 8, 30, 42;
Tr. #2, 425) and took him to the lineup room. Instead of
advising him of his rights, as the police had done so many
times previously, Officer Hriesik simply asked Jesse if he
understood his rights (Mot. 8, 30, 42; Tr. #2, 425). Jesse
said that he did. Hriesik then advised petitioner that "he
should straighten this matter out" (Mot. 8, 30, 42; Tr. #2,
425-6). In response to Hriesik's invitation, unaccompanied
by Miranda warnings or request to waive his rights, Jesse
asked to talk to his father, his girlfriend and his attorney
(Mot. 30). The officers did not permit him to phone his
attorney, and on the heels of this refusal, Jesse admitted
involvement in the shootings (Mot. 30, 42). Specifically,
Officer Butler testified to the following scenario:
Q. Now then in your presence Jesse was
advised he should straighten this
matter out. That would be something
oy ye said to him?
He immediately said before he said
anything he wanted to talk to his
father and _ friend is that correct
on page two
o>
- 6 «-
Yes, that is what he said.
Now was he petmitted at that time to
call his father or his girlfriend?
No not at that very moment.
- Did he mention he wanted to talk to
his lawyer?
I believe he did yes sir.
Was he permitted to contact his
lawyer at that time?
At that time.
_— would be myself.
POF OF DP OP
(Mot. 30)
After petitioner made incriminating admissions, to the
effect that he had accidentally shot Olga Laderman when she
grabbed his gun and had driven Eatmon to the beer dock where
Eatmon shot Robert Staples (Mot. 9), Hriesik asked him if he
would repeat the same story to Major O'Neil (Mot. 31, 42; Tr.
#2, 426). Jesse said he would, and Major O'Neil was brought
to the interrogation room (Mot. 10, 31, 42). At 10:20 A.M.,
the Major advised Officer Butler to read Jesse a rights card,
which he did (Mot. 31, 43; Tr. #2, 426-7). Jesse again
refused to sign the rights waiver portion of the rights card,
but repeated the same incriminating admissions to Major O'Neil
(Mot. 10-12, 31, 43-4; Tr. #2, 427-8).
Having told the police that he had held the gun when it
fired and killed Olga Laderman, Jesse, at the request of
Officer Hriesik, assented to a second confrontation with
Eatmon (Mot. 32-3, 45). At this second confrontation,
petitioner asserted that Eatmon had driven him to the Bel-Air
Motel, where the Laderman shooting occurred, and that he had
driven Eatmon to the beer dock, where Eatmon shot and robbed
Robert Staples (Mot. 14, 45-6; Tr. #2, 431-2).
Shortly thereafter, at 11:10 A.M. on February 12, 1977,
more than 24 hours after his arrest on the invalid bench
warrant and incidental marijuana charge, petitioner was taken
to court for the setting of bond on the marijuana charge
(Mot. 26, 46; Tr. #2, 461). Bond was originally set at
$1,000.00, but shortly thereafter was raised to $5,000.00
(Mot. 26). Upon his return to the jail, Jesse was visited by
his father, whom he told that he had confessed just to get the
police off his back (Mot. 47; Tr. #2, 433, 462).
= a
The next day, February 13, 1974, at approximately 4:05 P.M.,
police took petitioner to Major O'Neil's office for further
questioning (Mot. 75). Four officers, O'Neil, Goldsmith,
Hriesik and Kraus, were present (Mot. 64; 75-6; Tr. #2, 490,533).
At this time Jesse was advised of his rights, and he signed
a written waiver thereof (Mot. 76-7; Tr. #2, 490-1, 534).
Beginning at 4:55 P.M., these officers questioned Jesse about
the Laderman shooting (Mot. 64a, 88), and Officer Hriesik typed
all the questions and answers (Mot. 78; Tr. #2, 434). This
statement was completed at approximately 6 P.M. (Mot. 64a; Tr.#2,
495), at which time petitioner read and signed it (Mot. 78; Tr.
#2, 495). Jesse admitted in this statement that Re was holding
a gun on Olga Laderman, when she grabbed the gun and it went
off (Tr. #2, 493).
A second statement, regarding the Staples shooting, was
taken and typed from approximately 6:15 to 7:50 P.M. (Mot. 70,
79; Tr. #2, 495). Jesse read and signed this statement, in
which he admitted that he drove Eatmon to the beer dock, where-
upon Eatmon shot and robbed Robert Staples (Mot. 80; Tr. #2,
496).
As with the previous questioning sessions, the police
admitted they knew petiti-ner was represented by a particular
attorney before they quest . .< him (Mot. 101; Tr. #2, 507).
A warrant for aggravat.. murd. wes issued against the
petitioner at 7:10 P.M. on this same date, February 13, 1974
(Mot. 106), and he was arraigned the next day (Tr. #2, 480).
On February 19, 1974, Jesse and his counsel, at Jesse's request,
met with police officials, at which time he repudiated his
earlier statements and named other individuals whom he claimed
were responsible for the shootings (Mot. 110; Tr. #2, 481).
B. The Trial
The prosecution's case at trial consisted of testimony
which: identified the red Mercury Cougar, owned by petitioner's
girlfriend, as being present at the scene of both shootings
(Tr. #1, 55, 80, 91, 193, 203); established that the same gun
was used in both shootings (Tr. #1, 182-7); and disclosed that
the shots fired from this particular gun caused the deaths of
Olga Laderman and Robert Staples (Tr. #1, 29, 140).
The prosecution presented petitioner's girlfriend, June
Smith, who testified that Jesse had admitted involvement with
both robbery-shootings to her (Tr. #1, 246, 250, 261, 305).
She further testified that she told this to the police only
after the chief prosecutor told her that they would "go easy"
on her if she would make a statement, and after a policeman or
prosecutor suggested that she would be separated from her
baby daughter ualess she "talked" to them (Tr. #1, 309-10).
The prosecution also presented Jimmie Eatmon and Sam Horn,
both who testified that petitioner admitted sheoting Olga
Laderman (Tr. #1, 318, 349; Tr. #2, 394). Eatmon further
testified, along with one of his neighbors, Rodic Rutledge,
that Jesse borrowed a razor from him between 2:30 and 4:30
P.M. on the day of the shootings and shaved off his (petitioner's)
moustache and beard (Tr. #1, 318, 349, 351; Tr. #2, 383).
On cross-examination Eatmon admif.ted that he had been booked
on suspicion of murder and held in custody for five days
(Tr. #1, 360), but that he was never charged with an offense.
The prosecution next presented Officer Hriesik, who
testified that the petitioner had confessed that he was
robbing Olga Laderman, when she grabbed his gun and it fired
(Tr. #2, 426, 428, 431-2), and that he had driven Eatmon to
the beer dock, where Eatmon robbed and shot Robert Staples
(Tr. #2, 434). Subsequently, Officer Kraus testified that
he was present with the petitioner on February 13, when he
admitted the ahove-described involvement with the two shootings
and signed two statements to that effect (Tr. #2, 491).
Major O'Neil then related to the jury that petitioner
had confessed to this same involvement with the shootings to
him on February 12 (Tr. #2, 515).
Finally, the prosecut:ion presented Major Goldsmith, who
testified that he, too, ws present in the room on February 13,
when Jesse admitted involvement and signed two statements
to that effect (Tr. #2, 535). The two statements were
subsequently admitted into evidence (Tr. #2, 540).
«9 i
The defense thereupon presented evidence thet Robert
Staples (who was shot after the petitioner had allegedly shaved
off his moustache and beard) described his assailant as having
a moustache (Tr. #2, 552). The defense further offered reports
which contained the results ef tests conducted by the prosecution
which had proven negative with respect to the defendant, as
follows: (1) Exhibit 12 - presence of gunpowder residue;
(2) Exhibit 13, 14 and 15 - palm and fingerprint comparison;
(3) Exhibit 16 - ofl comparison; (4) Exhibit 17 - clothing
examination. (Tr. #2, 544).
Defendant, upon the advice of his counsel, did not
testify (Tr. #2, 575-6).
After offering incriminating exhibits into evidence, such
as the defendant's prior «~iminal record, which included a
breaking and entering and armed robbery conviction (Tr. #2,
577; Mitig., 32), defense counsel rested (Tr. #2, 581). 2) he
prosecution offered no rebuttal (Tr. #2, 581), and thereupon
presented its closing argument (i'r. #2, 584-97).
2/ This was not the first, nor the last, reflection of
inted trial counsel's lack of expertise in the trial
of a criminal case. Petitioner directs the Court to the
following portions of the record:
(1) Mot. 1-4 Specaes counsel unfamiliar with rules of
criminal Resoveny? $
(2) Mot. 1-157 (Counsel does not elicit evidence, nor
posit argument, regarding the fact that petitioner's
confessions were a fruit of his illegal arrest,
oye to a bench warant which had been set aside);
(3) All transcripts (Petitioner was never evaluated by a
defense expert, to determine competency, insanity, or
whether petitioner's conduct was primarily the product
of his mental deft oieney? i
(4) Tr. #1, 87-93, 299, 360-73 (Counsel brings out
previously unrelated and extremely dcmneing evidence
dur cross-examination of prosecution witnesses) ;
(5) Tr. #2, 421, 529-30 (Counsel fails to object to
extremely damaging, dmissible hearsay testimony
and testimony of prosecution witnesses) ;
(6) Tr. # , 578 (Counsel fails to present a motion
for j toof acquittal, both at the close of the
peseseution case and at the close of the defense);
(7) Tr. #1, 8; Tr. #2, 617-20 (Counsel admits petitioner's
guilt during his eeiy)e statement and closing
argument, respectively) ;
(8) Mitig. 3-4 (Defense counsel does not realize he has
burden of proof at mitigation hearing); and
(9) All transcripts (Ceunsel never argued against the
constitutionality of the death penalty).
e Me
— — aati 4
:
»
a)
7
Although defense counsel had amazingly admitted that
petitioner was involved at least as an accomplice in both
shootings during his opening statement, (Tr. #1, 8) he even
more amazingly admitted that Jesse shot and killed Olga
Laderman (Tr. #2, 617), and that he was at least an accomplice
in the robbery-killing of Robert Staples (Tr. #2, 620), during
the course of his closing argument. More specifically, defense
counsel argued as follows:
Basically what he tells about the Olga
Laderman death and he tells that in the
alleged oral statement he made prior to the
written statement is that he was about to
leave that motel and she grabbed for the
un and it went off, it was an accident.
1l right it was an accident. There was no
intent. He didn't want to shoot that woman.
He didn't want to kill anybody. To that
extent it is completely unplanned, unthought
of and that it was indeed a terrible thing
that happened and he regretted it very much
but it was none of the cold blood business
or anything of that kind involved in that.
sili (Tr. #2, 617)
What I am suggesting to you basically is
this. Jesse had some involvement in these
things if nothing else. It is his gun and
he was in the car but he had no involvement
than that. He had no involvement in both of
them than that and he probably is an
accomplice or whatever you want to call it.
I am further euageetsns to you that this
man's statement and this type of evidence
—h — y~ a y- in yh 9 of
y else any way charged or
implicated, although the informetion is
abundant, that he should not be found guilty
of aggravated murder. own belief is
either as accomplice or the Laderman case
directly on his own statement if you believe
it, that he would be guilty of homicide
of killing while perpetrat or committing
felony and I would think that if you feel
constrained because two deaths are involved
and because of his involvement here if you
in other words can find evidence
be reasonable doubt as the court will
define that to convict this rman of an
then I would think your consideration woul
be given to that finding, that is that he
was either directly or irectly involved
in killing while a felony was being
committed.
I don't know if Jesse Black would be
satisfied with a verdict of that kind, I am
sure he would be because the state of the
evidence or lack of it but I do believe that
if you find any involvement beyond reasonable
doubt in this case that would the nature
and extent of it.
(Tr. #2, 619-20)
e 22 «
C. The Mitigation Hearing
Subsequent to petitioner's conviction, the trial
court held a hearing in order to determine whether to sentence
him to death or to life imprisonment. The defense presented
no evidence at this hearing, but instead merely cross-examined
the neuropsychiatrist, whom the court had appointed to
evaluate petitioner (Mitig. 6, 43).
This neuropsychiatrist, Walter Massie, a consultant for
the Ohio Department of Correction (Mitig. 12), testified that
petitioner was mentally deficient (Mitig. 29, 34-5). He
stated that Jesse had an overall IQ of 68, which placed him in
the category of borderline mental retardation (Mitig. 24).
Dr. Massie testified that Jesse scored very low in block
design. He related that such a score was frequently an
indication of organic brain snydrome, a physical disorder of
the brain itself (Mitig. 24).
Dr. Massie characterized Jesse's mental deficiency as
follows:
pan... on act aed a unes
cuullice tie Genlinwe aiaamitee nnd in
was related to his lack of ability to
synchronize this information.
(Mitig. 29)
Stated briefly, the neuropsychiatrist concluded that Jesse was
mentally retarded, which, in his professional opinion, was the
equivalent of mental deficiency. (Mitig. 35).
When asked whether in his opinion Jesse's involvement in
the shootings was primarily the product of his mental
deficiency, Dr. Massie stated he could not form an opinion
(Mitig. 35, 42). Although he could form no opinion as to
whether Jesse's conduct was primarily the product of his mental
deficiency, Dr. Massie stated that "the mental deficiency of
Jesse Black would be a factor in his criminal activities."
(Mitig. 42).
Neither the defense nor the prosecution presented any
evidence (Mitig. 44-5). Defense counsel presented no argument
on behalf of his client (Mitig. 46). The court then asked the
petitioner if he had anything to say, to which he reuponded that
he "didn't kill them." The coune chaseupes sentenced Jesse to
death (Mitig. 47).
D. Federal Question Raised
The denial of petitioner's Sixth Amendment right to
counsel by virtue of trial counsel's ineffective assistance
was raised by way of assignment of error in both the Richland
County Court of Appeals and the Ohio Supreme Court. The
assignment of error was overruled by both Courts.
The constitutional validity of the Ohio death penalty
scheme was raised by assignment of error in both the Richland
County Court of Appeals and the Ohio Supreme Court. Both
courts overruling that assignment of error.
The constitutional validity of petitioner's inculpatory
statements was first raised in the trial court by a motion to
suppress, which was overruled, (Mot. 156). The issue was
preserved by assignment of error in both the Richland County
Court of Appeals and the Ohio Supreme Court. Both Courts
overruled that assignment of error.
VI. REASONS FOR GRANTING THE WRIT
A. UNDER ANY OF THE CURRENT STANDARDS FOR DETERMINING
AMENDMENT VIOLATION WHICH COULD HAVE BARRED THE
PROSECUTION WITNESSES (6) NEVER HAS HIS CLIENT
EVALUATED BY A DEFENSE EXPERT TO DETERMINE HIS
COMPETENCY TO STAND TRIAL, SANITY OR, FOR THE
PRESENCE OF A STATUTORY MITIGATING 7ACTOR WHICH
AND @) DEMONSTRATES A GENERAL UNAWARENESS
TRIAL AND POST-TRIAL PROCEDURES
GOVERNING TRIAL OF CRIMINAL CASES IN OHIO.
To date, no generally accepted standard has been developed
in the area of ineffective assistance of counsel by which to
measure the conduct of criminal defense attorneys. Such fact
is reflected in Gawd. Ineffective Assistance of Coungel-Stendards
e 13 ‘e
and Remedies, 41 Mo. L.R. 483 (1976), wherein the author sets
forth the following numerous, divergent standards which have
been adopted by the lower courts: farce, sham or mockery; 3
counsel eer * meaeed likely and rendering reasonably effective
assistance; counsel's performance at the normal level of
competency ; 2 performance meeting the guidelines provided in
the American Bar Association Standards Relating to the
Administration of Criminal Justice S/ fair trial and substantial
oe z and numerous variations of those standards described
above.
Similarly, the courts have disagreed on tne question of
who must shoulder the burden of establishing prejudice, or
conversely, the lack of prejudice flowing from the constitu-
tionally inadequate representation. For example, the Fourth
and D.C. Circuit Courts of Appeals place the burden of proof
on the prosecution, Coles v. Peyton, 389 F.2d 224 (4th Cir.
1968) ov" United States v. DeCoster, 487 F.2d 1197 (D.C. Cir.
1973) ~ whereas the Third and Eighth Circuits place the burden
on the defendant, Green v. Rundle, 434 F.2d 1112 (3rd Cir.
1970) and McQueen v. Swenson, 498 F.2d 207 (8th Cir, 1974).
—
3/ Brown v. Beto, 377 F.2d 950 (5th Cir. 1967).
4/ v. Ellis, 280 F.2d 592 (Sth Cir. 1960); Beasley v.
” tates, 291 F.2d 687 (6th Cir. 1974); Uns United States
v. $8 F.2d 236 (9th Cir. 1975);
Strawder, 34 Cal. App. 3d 370, 108 Cal. bee onn G (1973).
5/ re v. United States, 432 F.2d 730 (3rd Cir. 1970);
ac Vv. evada State Prison, 537 P.2d 47
5)3 3 Neb. 485, 222
: : 445 (W.Va.
W.2d 573 (1 3, 203 S.E.2d
1974).
6 les v. 389 F.2d 224 (4th Cir., cert. denied, 303
s/ v S. 84 ; United States v. DeCoster, 487 F.2d 1197
D. c. ctr. 973); " state v. Harper, 57 Wis.2d 543, 205 N.W.
1973).
7/ piled v. Hester, 45 Ohio St.2d 71, 341 N.E.2d 304 (1976).
8/ See, e.g. s v. Welch, 148 F.2d 667 (D.C.Cir.), cert.
Seal oa 45 §?° i52 F.2d 16
88 . i
. a 1945); Lunce ov. variate. Sde, 244-F 2d 108 (7th
r.
9/ fee, United tates ve ster II, decided Oct. 19, 1976,
scus r.L. Oct. 27, 1976, in
which D. “C. Circuit seatiions its position.
=!) 2
Petitioner submits that under any of these standards, and
irrespective of who has the burden of proof, he was prejudiced
by the gross deprivation of his Sixth Amendment right to
effective assistance of counsel, to which he is entitled as a
state defendant under the Sixth and Fourteenth Amendment to the
U.S. Const. Avery v. Alabama, 308 U.S. 444 (1940). As a result
of the ineffective assistance rendered in this case, which is
summarized in the following paragraphs, petitioner is entitled
to a new trial.
$0), Petal ooverel.s Cfstestn So Rs se trian whe bis
admission of petitioner's guilt, both durirg opening statement
and closing argument. He told the jury that petitioner shot
and killed Olga Laderman during the course of an armed robbery
and that petitioner was at least an accomplice in the robbery-
slaying of Robert Staples (Tr. #2, 617, 620; both passages set
forth in full Statement of the Case. In Ohio, the conduct
admitted by defense counsel constitute the elements of
aggravated murder and of the specification which makes the
offense punishable by death, because the murder occurred in
the course of aggravated (armed) robbery. State v. Lockett, 49
Ohio St.2d 48, 61-3 (1977). Trial counsel's unauthorized
admissions to the jury, in and of themselves, constitutes
ineffective assistance of counsel. See Matthews v. United States,
449 F.2d 985 (D.C. Cir. 1971); Johns v. Smyth, 176 F.Supp. 949
(E.D. Va. 1959).
(b) Trial Counsel's unjustifiable intreduction of
petitioner's felony record
Secondly, even though petitioner never testified during
the course of his defense, thereby negating the possibility
that the jury would learn of his prior criminal record for
the felonies of breaking and entering and armed robbery,
defense counsel himself introduced petitioner's record into
evidence (Tr. #2, 577; Mitig., 32). No reason for this
unjustifiable action appears in the record. Had the prosecution
attempted to introduce this evidence, it would have been
precluded as inadmissible. The presentation of inadmissible
and prejudicial evidence by defense counsel demonstrates
counsel's ineffectiveness and is sufficient by itself to require
anewtrial. See le v. Blevins, 251 Ill. 381, 96 N.E.2d 4
(1911).
(c) Trial counsel's failure to raise obvieus
censtitutienal ebjections to prejudicial evidence
Thirdly, defense ceunsel never raised a Feurth Amendment
violation, which ceuld have barred the admissien of petitiener's
confessions te the pelice. Specifically, the third time
~etitiener was arrested and questioned with regard te the
-ostant case, he was arrested pursuant to a bench warrant
which had already been set aside. When he was brought to the
police station he was searched as incident te the illegal
arrest, a trace of marijuana was found in one of his pockets,
and he was charged with pessession of marijuana. Petitioner
was not arraigned in ceurt on this charge until after he was
interrogated four times and confronted by a witness two times,
over the .ceurse of a period of more than twenty-four hours.
It was during this period of repeated interrogation that
petitioner confessed te invelvement in the two incidents.
Under the fruit of the poisonous tree dectrine, which
originated in Weeks v. United States, 232 U.S. 383 (1914) and
was extended to verbal evidence in Wong Sun v. United States,
371 U.S. 471 (1963), such confessions are suppressable, as long
as the caugal connection between the Feurth Amendment violation
and the resulting evidence has net become se attenuated as to
dissipate the taint. Nardone v. United States, 308 U.S. 338
(1939). In the instant case, as in Brown v. Illinois, 422 U.S.
590 (1975), the causal connection was reinferced by the fact
that the illegal bench warrant arrest was merely a pretext
for additienal interrogations ef petitiener. Therefore, as
in Brown, supra, the cenfessions which flewed frem the illegal
arrest ceuld have been suppressed. See Whitely v. Warden, 401
U.S. 560 (1971). Counsel's failure to even raise this issue,
either prior to or at trial, serves as further indication of
his ineffectiveness and of the prejudice to the petitioner
which resulted therefrom.
- 16 -
(d) Trial counsel's failure to gejee ect t meen.
inadmissible hearsay and op teotin
The fourth indication of trial ceunsel's ineffectiveness
was his failure to object to extremely damaging, inadmissible
hearsay and opinion testimony; remely, (1) the testimony of an
acquaintance of petitioner, Sam Horn, who, after relating that
petitioner never mentioned anything about a gun, stated that:
“Somebody told me about the gun. Said the gun he didn't worry
about the police never finding it, it had been destroyed"
(Tr. #2, 421); and (2) the testimony of one of the police
officers, Chief O'Neil, whe stated that in obtaining the
petitioner's cenfession: "We laid our cards on the table, we
know he was trigger man for those two people,..." (Tr. #2,
529-30). Such testimony prejudiced petitioner, because it
conveyed a highly incriminating fact, the destruction ef the
gun, to the jury, and because it enabled the highest ranking
police official of the community to relate his epinion of the
petitioner's guilt to the jury. Trial counsel's failure to
object to this highly incriminating, inadmissible evidence
provides one further self-sufficient reason for granting
petitiener a new trial. See People v. Blevin, supra.
(e) Trial Gounsel's inquiry into previously unrevealed
prejudicial evicence
Counsel's uncovering of previously unrelated, damaging
evidence during his cross-examinatien ef presecution witnesses
provides a fifth independent basis for finding that he
rendered ineffective assistance of counsel as a matter of
law. People v. Nitti, 312 111. 73, 143 N.E. 448 (1924). In
the case at bar, counsel uncovered the following incriminating
evidence during cress-examination: (1) that only one person
left the beer dock in the red Mercury Cougar after the shooting
(Tr. #1, 87); (2) that the Cougar being driven by petitioner
at the time ef his arrest was definitely the one which left
the beer dock after the shocting (Tr. #1, 90-92); (3) that the
driver of the Cougar was wearing either a small Afro or hat
(Tr. #1, 93); (4) that there was a ski mask sitting in the red
Cougar that petitioner was driving shortly after the motel
° We
shooting (Tr. #1, 299); (5) that petitioner was wearing
different clothes after the motel shooting than before,
including a ski cap which covered his face (Tr. #1, 371); and
(6) that petitioner removed a gun from his coveralls when
removing his coveralls at a friend's house after the motel
shooting (Tr. #1, 373-4). Thus, defense counsel did not
provide zealous representatien of his client, but instead
served the prosecution's interest and did the prosecution's
job.
(f) Ceunsel's failure to have his mentally
deficient client examined by a defense expert.
Sixth, trial counsel never had his client examined by 4
defense expert to determine his competency, sanity, or,
subsequent to convictien, to determine whether petitioner's
conduct was primarily the product ef his mental deficiency.
Instead of presenting evidence relating to cempetency, sanity
or mental deficiency, ceunsel merely cross-examined the
court-appointed psychiatrist at the mitigation heering. This
psychiatrist, who served as a cénsultant to the State Depart-
ment of Cerrectien, admitted petitioner is mentally deficient,
but stated that he ceuld net express an opinien as to whether
petitiener's involvement in the shootings was primarily the
preduct ef his mental deficiency (Mitig. 24-9,35, 42). He
was able to determine that petitioner's mental deficiency was
a factor in his criminal activities (Mitig. 42). The fact that
the petitioner's 1.Q. is only 68 raises a question as te his
competency to stand trial and at a minimum petitioner is
entitled to a remand for a determination of his competency at
the time sf trial. Drepe v. Missouri, 420 U.S. 162 (1975).
In Ohio, Sectien 2929.04(B)(3) of the Revised Cede places
the burden ef establishing that the offense was primarily the
product of the effender's metnal deficiency on the defendant
by a preponderance of the evidence. In the case at bar, the
court-appointed psychiatrist concluded that the petitioner was
mentally deficient and determined that such deficiency was &
factor in petitioner's criminal activities. But he stated he
could net say, one way or the other, whether petitioner's
—
cenduct was primarily the preduct ef his mental deficiency. No
further testimony was presented, and defense counsel never
seught independent expert opinion ts determine his client's
conduct was primarily the preduct ef his mental deficiency.
Thus, petitiener was sentenced to death in a situation where
the 51% burden of a prependerance was not met, but instead the
scales rested at 50-50,
Under these circumstances, counsel's failure te even seek
an independent determination ef whether petiticner's cenduct
was primarily the preduct of his mental deficiency was
inexcusable, see Teoley v. Rose, 507 F.2d 414 (6th Cir. 1974),
and violated petitiener's right te present his own witnesses
te establish a defense. Washingtor v. Texas, 388 U.S. 14 (1967).
Had a defense expert been contacted, who felt petitioner's
conduct was primarily the preduct of his deficiency, such
evidence could have been presented and weuld have met the
burden of a preponderance. Such a showing weuld have required
the court to sentence petitiener te life imprisenment rather
than death,
(g) Ceunsel's unfamiliarity with procedures governing
c 1 cases
Finally, petitioner addresses the Court to the following
portiens of the instant transcript, which reflect defense
counsel's general unawareness of pretrial, trial and post-trial
procedures governing criminal cases in Ohio: Mot. 1-4 ‘-e:.
(unfamiliarity with discovery rules); Mitig. 3-4 (ceunsel
proceeds with mitigation hearing without any evidence moments
after first realizing he has burden ef preof by a preponderance
of the evidence); Tr. #2, 540, 578 (counsel dees not move for
a judgment ef acquittal, either at the close of the presecution's
case er the clese ef ali the evidence, even though such argument
can be presented te the trial ceurt eutside the hearing ef the
jury, i.e., coumsel never meved for what many jurisdictions refer
to as a directed verdict; and counsel never challenged the
validity of the death penalty in Ohio, even though ceunsel must
have known that its constitutionality had not been, but would
eventually be determined by the Ohio Supreme Ceurt.
‘
- 19 - |
me
In concluston, petitioner submits that, when considered
as a whole, the above-seven factors constitutionally mandate
a new trial, for the reason that petitioner's case was
substantially prejudiced by his counsel's failure to render
effective assistance.
B. OHIO REVISED CODE SECTIONS 2929.03(E) AND 2929.04(B)
FOURTEENTH
Fellowing a verdict of guilty of aggravated murder with
specificatiens, Ohio Revised Code Sections 2929.03(E) and
2929.04(B) place on the defendant the burden of proving by a
preponderance of the evidence the existence ef one of three
mitigating circumstances in order to preclude imposition of
the death penalty. By placing such a burden on the defendant
these statutes violate due process ef law under the principles
enunciated by this court in In re Winship, 397 U.S. 358 (1970)
and Mullaney v. Wilbur, 421 U.S. 684 (1975).
In Winship this court held that, as a matter of due process
of law, the prosecution must prove beyond a reasonable doubt
every fact necessary to censtitute the crime charged. In
reaching this result the court weighed the state's interest in
convicting the guilty and avoiding erreneous acquittals
against the defendant's interest in avoiding erreneous con-
victions. See 397 U.S. at 370-372 (Harlan, J. concurring).
Perceiving the enormously destructive consequences of a
criminal conviction, the court unhesitatingly chose to avoid
conviction of the innocent, a choice that carried with it a
standard of proof beyond a reasonable doubt. Necessarily,
that choice also allocated the burden of proof to the state.
In Mullaney the court wes concerned with the application
of Winship to a Maine procedure which placed on the defendant
the burden of proving, by a preponderance, the existence of
provocation to reduce murder to voluntary manslaughter. As
the Maine Supreme Ceurt had interpreted Maine law, there was
but a single, generic offense of voluntary criminal homicide,
and the labels "murder" and "voluntary manslaughter" described
only punishment categories. 421 U.S. at 688-9,691, 699. The
NEE
State of Maineargued in Mullaney, then, that Winship should
not apply because in Winship the facts at issue were essential
to establish criminality in the first instance whereas the
fact in question in Mullaney did not come into play until the
jury had already determined that the defendant was guilty. Id.
at 697. In rejecting that argument, the court noted that such
an analysis failed to recognize that criminal laws are
concerned not only with guilt or innocence in the abstract but
also with the degree of criminal culpability. fhe court held
that Maine could not distinguish between those who kill in the
heat of passion and those who kill in the absence of that
factor, while refusing to require the prosecutien to establish
beyond a reasonable doubt the fact upon which it turns,
without denigrating the principles found critical in Winship.
Id. at 697-8.
Likewise, the Ohio death penalty scheme is concerned not
only with the guilt or innocence of the defendant but also with
the degree of criminal culpability. Ohio treats those who
kill as a result of a mitigating factor differently from those
who kill in the absence of such a factor, Yet, Ohio, like
Maine, places the burden of establishing the fact upon which
that distinction turns upon the defendant. Such a procedure
denigrates the very same principles found critical in Winship
and Mullaney.
The facts of the case at bar strikingly illustrate that
Ohio's death penalty scheme is unquestienably an unreliable
procedure for determining the critical issue ef who should
live and die. By placing the burden on the defendant, Ohio
made the decision to execute Jesse Black on the basis of the
testimony of the state's neuropsychiatrist whag while he was
able te conclude that Jesse was mentally deficient, was
unable to form an opinion on the ultimate question of
mitigation, namely, whether Jesse's involvement in the
shootings was primarily the product of his mental deficiency.
Had the burden been on the state, Jesse Black would not now be
condemned to die. This burden shifting procedure does not
begin to meet the due precess "need for reliability in the
determination that death is the appropriate punishment in a
specific case. Woodson v. North Carolina, 428 U.S. 280, 305
(1976).
Both Winship and Mullaney sovght to improve the reliability
of the fact-determining process when issues of such critical
importance are at stake. Speaking of the Maine procedure, the
Court observed in Mullaney, supra at 703:
Under this burden of proof, a defendant
can be given a life sentence when the
evidence indicates that it is as likel
as not that he deserves a s can
lesser sentence. This is an intwlerab
result in a society where, to paraphrase
Mr. Justice Harlan, it is far worse to
sentence one. guilty only of manslaughter
as a murderer than to sentence a
murderer for the lesser crime of manslaughter
(emphasis added).
The possibility of an erroneous decision to execute Jesse
Black is even more intolerable than the possible erroneous
decisions in Winship and Mullaney. Yet, Ohio has condemned
Jesse Black to die when the evidence indicates that it is as
likely as not that he deserves to live, although in a prison:
Such a procedure is a flagrant violation of Jesse Black's
right to due process ef law.
C. OHIO'S DEATH PENALTY SCHEME IS UNCONSTITUTIONAL,
CONSIDERING THE ILLUSORY NATURE OF SOME OF THE
SPECIFIED MITIGATING FACTORS, THE NARROW SCOPE OF
WHAT REMAINS AND THE IRRELEVANCE OF NONSPECIFIED
FACTORS AND THE FACT THAT OHIO DOES NOT HAVE A
SYSTEM OF APPELLATE REVIEW OF ALL DEATH SENTENCES
WHICH INCLUDES A COMPARISON OF CASE BY CASE FACTS
TO INSURE THAT A DEATH SENTENCE IN A PARTICULAR
CASE IS WARRANTED.
Revised Code of Ohio, Section 2929,.04(B) sets forth three
(3) mitigating circumstances:
(1) The victim of the offense induced or
facilitated it.
(2) It is unlikely that the offense would
have been cemmitted but for the fact
that the offender was under duress,
coercion or strong provocatios.
(3) The offense was primarily the product
Setlahexee, eaag’ teak seniinten to
. 8 c t s
insufficient to establish the defense
of insanity.
If a defendant convicted of aggravated murder with specifica-
tions fails to establish by a preponderance of the evidence
° 22 «
one of these three facters the defendant must be sentenced to
die. Close analysis of these factors will disclose that
some of them are illusory, the remaining factors are quite
narrow and the list of specified factors is exclusive, thereby
precluding the trial judge from "consideration of the character
and record of each convicted defendant before the imposition
upen him of a sentence of death." Woodson v. North Carolina,
96 S.Ct. 2978 (1976). As a result, the Ohio death penalty
scheme is the functional equivalent of the mandatory statutes
struck down by this Court in Woodsun, supra and Roberts v.
Louisiana, 96 S.Ct. 3001 (1976).
The first mitigating factor presumably refers to
consensual “mercy killing," for without a willing victim no
congideration would ever be given to this curcumstance.
Before this factor becomes relevant, however, the defendant
must first be found guilty of aggravated murder with a
specially aggravating circumstance. The aggravating cir-
cumstances specified in R.C. §2929.04(A), however, are
fundamentally inconsistent with a mercy killing. It strains
credulity to posit that a mercy killing could ever involve one
of the aggravating circumstances. Thus, the first mitigating
factor delineated in R.C. 2929.04(A) is illusory It simply
does not exist.
The second mitigating factor is virtually identical to
Ohio's formulation of the insantiy defense as announced in
State, v, Staten, 18 Ohio St.2d 13 (1969):
"One accused of criminal conduct is
not responsible for such criminal conduct
if, at the time of such conduct as a
docs mot have the capacity either to.
know the wrongfulness of his conduct or
to conform his conduct to the require-
ments of the lew.”
Conviction of aggravated murder with specification where the
defense is insanity which, of course, demands that the crime
was primarily a product of the accused's mental condition,
leaves no room for asserting mental condition as a mitigating
factor because there is just no substantial difference between
the Ohio definition of insanity and the psychosis or mental
- 23 -
deficiency contained in this mitigating circumstance. Where a
trial jury rejects the insanity defense, such verdict realistical-
ly rejects the mitigating circumstance.
The final mitigating factor, dealing with duress, coercion
or a strong provecation, is equally illusory in application.
Although the Ohio Supreme Court in State v. Woods, 48 Ohio st.2d
127 (1976) recognized that mitigating duress and coercion would
be nullified if these terms were given their traditionally
narrow, criminal law definitions, thereby construing the terms
broadly, the Court's application of this mitigating factor has
all but nullified it. In both Woods, supra and State v. Bell,
48 Ohio St.2d 270 (1976) the Court held that neither defendant
was under duress or coercion because neither had abandoned
their criminal activity when they supposedly had an opportunity.
This attitude and approach begs the obvious, for it is unlikely
or impossible that those easily influenced, led, dominated
or inherently weak will or could ever break from the strong
and flee. Both Woods and Bell, supra effectively eliminate
this mitigating factor for anyone who actually commits
aggravated murder.
Thus, Ohio's mitigating factors are either so illusory or
narrow as to be totally ineffectual as a basis for deciding
when the death penalty should be precluded. Although R.C.
§2929.04(B) purports to permit consideration of other factors,
such as the history, character and condition of the offender,
those factors may be considered only as they relate to the
three statutory mitigating circumstances. Since, 4s discussed
above, those circumstances are so narrow as to be illusory and
any other factors are irrelevant, the Ohio death penalty
scheme imposes the death penalty in violation of due process
of law.
Appellate review of death sentences (not merely convict fon)
is required by the decision of this Court. Such review is an
"important additional safeguard against arbitrariness and
caprice." Gregg v. Georgia, 96 S.Ct. 2909, 2937 (1976). In
the first death penalty case to reach the Ohio Supreme Court,
State v. Bayless, 48 Ohio st.2d 73 (1976) the Court held that
- 24 «
possesses <se astbericy te review aoeth Peters, en che
ieeus sow is whether or mot the Court hes ever reviewed
adequately a death sentence to insure that it is proportionate
to the sentence imposed in a similar case. To date, the Ohio
Supreme Ceurt hae affirmed seventcen (17) of eighteen (18)
death sentences, reversing one conviction caly for evidentiary
error unrelated to sentence. Yet in Proffitt v. Florida, 96
S.Ct. 2967 (1976) the facts indicated that the Florida Supreme
Court had set aside the death sentence in 40% of the cases it
considered (pp. 2969-70). It appears that Ohio has not
compared any one death case with any other death case, and has
announced no rule or procedure for obtaining information about
cases in which the trial judge found that mitigating circum-
stances existed and the death penalty was not imposed. In
fact, in one case State v. Woods, 48 Ohio St.2d 127 (1976), the
Court reviewed and affirmed the death sentence when it did
not even have the pre-sentence report required to be made by
statute. It is unconceivable that the Ohio appellate review
process is at all adequate when the death sentence can be
affirmed under such circumstances.
Ohio's death penalty scheme then, is nothing more than a
thinly disguised mandatory procedure for imposing the death
penalty. Although various factors may be considered, they may
be considered only as they affect the extremely narrow and
illusory mitigating circumstances. Further, Ohio's appellate
review process provides no assusrance against disproportiona}ity
as required by Jurek v. Texas, 96 S.Ct. 2950 (1976). Ohio's
death scheme as a whole is a totally inadequate procedure for
guarding against the arbitrary and capricious imposition of
the death penalty.
D. THE STATE HAS NOT ESTABLISHED ITS BURDEN OF
PROVING A VOLUNTARY, KNOWING AND
INTELLIGENT
WAIVER BY THE DEFENDANT OF HIS FIFTH, SIXTH,
AND RIGHTS, PRIOR TO
—
This Court has censistently recognised the “inherently
coercive” neture of an in-custody police interrogation,
Miranda v. Arizona, 384 U.S. 436 (1966); Schneckloth v.
Bustamante, 412 U.S. 218, 247 (1973); Escobedo v. I}linois, 378
U.S. 478 (1964). Such coercion can, of course, be mental as
well as physical. Blackburn v. Alabama, 361 U.S. 199, 206
(1960). In Miranda the Court “concluded that without proper
safeguards the process of in-custody interrogation of persons
suspected or accused of crime contains inherently compelling
pressures which work to undermine the individuals will to
resist and to compel him to speak where he would not otherwise
do so freely." 384 U.S. at 467. The Miranda court then pro-
ceeded to establish required warnings, providing that once
the warnings are given the "subsequent procedure is clear.
If the individual indicates in any manner, at any time prior
to or during questioning, that he wishes to remain silent,
the interrogation must cease...If the individual etates that
he wants an attorney, the interrogation must cease until an
attorney is present." 384 U.S. at 444. A confession taken
in violation of these safeguards, absent a voluntary, knowing
and intelligent waiver of the rights protected thereby, is
per se inadmissible.
This case represents a classic example ef "inherently
coercive" pelice practices. The facts indicate a pattern of
arrests followed by lengthy interrogations. Despite the
dictates of Miranda, however, the police did not cease the
interrogation after Jesse steadfastly refused to sign a rights
waiver form and indicated his desire to remain silent. The
testimony of one police officer is illustrative of the
interrogation techniques employed:
A. we advise him of his signee. and he
poe oy A. an A» oS chet LS an being
held for." (Mot. &)
Unlike Michigan v. Mosley, 423 U.S. 96 (1975), then, this is
clearly a case "where the police failed to honer « decision of
- 26 -
,
PEAT AER Re oe hee 4 utip
Co diacomcimee <Oe Uawiiwgedavn am weeeer ON cee ese
in repeated efforts to wear dow his resistance and make hin
change his mind." 423 U.S. at 105.
Other than requests to have Jesse sign a rights waiver,
which he refused to do, the police did not at any time prior to
Jesse's first incriminating statement try to elicit a voluntary,
knowing and intelligent waiver from him. And it is clear that
a valid waiver will not be presumed “from the fact that a
confession was in fact eventually obtained." 384 U.S. at 475.
On the contrary the fact of the lengthy interrogation before
Jesse made his statement "is strong evidence that the accused
did not validly waive his rights. In these circumstances the
fact that the individual eventually made a statement is consis-
tent with the conclusion that the compelling influence of the
interrogation finally forced him to do so." 384 U.S. at 476.
Even more blatant than the violation of the defendant's
privilege against self-incrimination was the outright denial
of his Sixth Amendment right to counsel. Although the police
knew Jesse had an attorney, they did not cease their
interrogation until that attorney could be present. In fact,
just before the interrogation on the morning of February 12th
at which Jesse made his first incriminating statement, at a
time when the officers’ persistent coercive interrogation
techniques were finally overbearing the defendant's will, Jesse
was denied his request to talk with his attorney in direct
violation of the principles of Escobedo v. Illinois, 378 U.S.
478 (1964) and Massiah v. United States, 377 U.S. 201 (1964).
This Court's recent decision in Brewer v. Williams, 20 C.L.
3095 (1977) has served to re-emphasize the importance of the
indispensable right to counsel, especially at the critical
pretrial stage. Although a defendant can, of course, waive
that right, courts indulge in every reasonable presumption
against waiver, e.g. Brookhart v. Janis, 384 U.S. 1, 4(1966).
In order to establish a waiver, the state must bear the heavy
burden of proving "an intentional relinquishment or abandonment
of a known right or privilege." Johnson v. Zerbst, 304 U.S.
458, 464 (1938). As in Brewer v. Wiiliams, supra "a review of
the record here...discioses no facts to support the conclusion
of the state court that [Black] had waived his constitutional
rights other than that [he] had made incriminating
statements..." (20 Cr. L. at 3100, quoting with favor from
Court of Appeals decision, 509 F.2d at 233).
Although the police repeated the required Miranda warnings
before each interrogation, the officers failed to comply with
the subsequent procedure outlined in that case, namely that
they cease the interrogation when the defendant indicates his
desire to remain silent or to contact a lawyer. In addition
there is no evidence whatsoever to support the state's heavy
burden of proving a valid waiver of the defendant's Fifth,
Sixth, and Fourteenth Amendment rights. The confession
obtained in the absence of such a waiver was thus in violation
of Jesse Black's constitutional right to counsel and privilege
against self-incrimination and as such, was inadmissible
at his trial.
| VII. CONCLUSION
For the reasons contained herein, certiorari should be
granted.
Respectfully submitted,
Clinical
The Ohio Stata! versity
College ef Law
1659 North High Street
Columbus, Ohio 43210
(614) 423-6821
Clinical Programs
The Ohio State University
College of Law
1659 North High Street
Columbus,~-Ohio 43210
(614) 422-6821
I, Bruce R. Jaceb, counsel for Petitioner herein, and a
member of the Bar of the Supreme Court of the United States,
hereby certify that on the/< day of April, 1977, I served a
copy of the foregoing Petition for a Writ of Certiorari to
The Supreme Ceurt of Ohie by mailing a copy in a duly addressed
envelope, with first class postage pre-paid, to the offices ef
William F. McKee, Prosecuting Attorney for Richland County,
38 South Park Street, Mansfield, Ohio 44902 and William J.
Brewn, Attorney General for the State of Ohio, 30 East Broad
Street, Columbus, Ohio 43215.
Counsel : for Petitioner
- 29 -
—_—SSEe eS
=f 7 =aac.
Ss. 3a" aes
ee ee
. . . - —s ae)
var 15 342 PHOT
SEWE COFFEY
CLERK CF COURTS
Case No.
8304
-IN THE COMMON PLEAS COURT OF RICHLAND COUNTY, OHIO
) INDICTMENT: Aggravated Murder
STATE OF OHIO,
Plaintiff,
vs.
JESSE BLACK,
Defendant.
On May 13, 1974, came the Prosecuting Attorney on behalf
(Two Counts)
R.C. 2903.01
with Specifications
in R.C. 2929.04
JOURNAL ENTRY
of the State of Ohio, and the defendant, Jesse Black, being in
court in custody of the Sheriff, represented by his attorney,
Rees Davis, for trial on an Indictment charging defendant with
two counts of Aggravated Murder with one Specification on the
first count and two Specifications on the second count
(R.C.2903.01), such trial having begun on April 29, 1974; upon
consideration of the evidence, arguments by counsel and charge
by the court, the jury returned a verdict of Guilty on the first
count of Aggravated Murder and a verdict of Guilty on the
Specification to the first count, and a verdict of Guilty on the
second count of the Indictment charging Aggravated Murder, and
a verdict of Guilty to the two Specifications of said second
count, such verdicts were accepted by the court.
IT 18, THEREFORE, ORDERED, ADJUDGED and DECREED thac
the jury verdicts of Guilty to the two count Indictment of
Aggravated Murder and all Specifications to said Indictment are
hereby accepted by the court.
la
IT IS FURTHER ORDERED that the defendant be remanded to
the custody of the Sheriff and this matter is continued pursuant
to Section 2929.03, of the Ohio Revised Code.
Prosecuting Attorney
i
blag eebe
Attorney for Defendant
2a
= ——— — —=————— _——— «+
Jut 5 fi ee 4 4
GE*c r CFFEY
* CCURTS
ae . Case No. 8304
IN THE COMMON PLEAS COURT OF RICHLAND COUNTY, OHIO
STATE OF OHIO, ) INDICTMENT : ravated Murder
( Counts)
Plaintiff, ) R.C. 2903.01
: with Specifications
vs. ) in R.C. 2929.04
JESSE BLACK, ) JOURNAL ENTRY
Defendant. ,
-- On July 8, 1974, came the Prosecuting Attorney on behalf
of the State of Ohio, and the defendant, Jesse Black, being in
Court in custody of the Sheriff, represented by his attorney,
Rees Davis, for hearing and sentence in accordance with Section
2929.03, Revised Code; the Court having heretofore on the 5th
day of July, 1974 in the presence of the defendant, Jesse Black,
and his attorney, Rees Davis, overruled the motion for a new
_ trial filed on behalf of said defendant and pursuant. to said
Section, the Court having required a pre-sentence investigation
and a psychiatric examination to be made and having considered th
testimony. and other evidence and the statements of counsel and
' the reports, and upon consideration thereof the Court finds as
follows, to-wit: the Court finds that the defendant having been
tried by a jury, that on May 13, 1974, the jury found the
defendant guilty on Count One of the Indictment, which was the
Aggravated Murder of Olga Laderman; and that the jury found the
defendant guilty of the Specifications as to Count One, in that
the defendant committed the Aggravated Murder of Olga Laderman
while committing Aggravated Robbery; and that said jury found the
defendant guilty as to Count Two of the Indictment which was the
Aggravated Murder of Robert B. Staples; and chat the jury found
the defendant guilty of Specification One as to the Second Count
in that the Aggraveted Murder of Robert B. Staples was while
3a
‘committing Aggravated Robbery; and that the jury found the
. defendant guilty of Specification Two as to the Second Count in
ee
that the Aggravated Murder of Robert B. Staples was part of a
course of conduct involving the purposeful killing of two persons
by him, and the Court coming to pronounce sentence inquired of
the defendant and his attorney if he or they had anything to say
before sentence is pronounced, and the defendant having addressed
the Court; the Court finds upon consideration of the reports and
the testimony and the arguments of counsel and any other evidence
that is before the Court that none of the three mitigating
circumstances set out in Section 2929.04 have been established as
to the Aggravated Murder as to Count One or Count Two in the said
Indictment and that the Court is therefore obligated to sentence
the defendant, Jesse Black, in accordance with Section 2929.03,
Revised Code.
IT IS, THEREFORE, ORDERED, ADJUDGED and DECREED that the
defendant, Jesse Black, be sentenced to death on Count One of the
Indictment and further that the defendant, Jesse Black, be
sentenced to death on Count Two of the Indictment, and that the
defendant, Jesse Black, be remanded to the custody of the Sheriff
of Richland County for the delivery of said defendant to the
State of Ohio to the Chillicothe Correctional Institute, at
Chillicothe, Ohio, for the execution of the sentence of this
Court in accordance with law at the earliest date possible under
the statutes of Ohio.
The Court after having imposed sentence for a serious
offense which has gone to trial on a plea of not guilty, the
Court having advised the defendant that he has a right of appeal;
that if he is unable to pay the costs of an appeal he has the
right to appeal without payment; that if he is unable to obtain
counsel for an appeal, counsel will be appointed without costs;
meee ae eee ee -_—_—- + ©
-3-
that if he is unable to pay the costs of documents necessary to
an uppeal, s.ch documents will be provided without costs and that
he has a right to have the notice of appeal timely filed on his
behalf and upon the request _of defendant, Jesse Black, for the
rs
appointment cf counsel for appeal, the Court does forthwith
‘ appoint Attorney Kenneth G. Frizzell for appeal.
William F. McKee
Prosecuting Att
Rees Davis
Attorney for Defendant
Pu yy!
NUV 2819/9 id cue COURT OF APPEALS, FIFTH DISTRICT
Gs..d Carrel
CLERK RICHLAND COUNTY, OHIO
STATE OF OHIO : JUDGES:
: Hon. Leland Rutherford, P.J.
Plaintiff-Appellee : Hon. Norman J. Putman, J.
: Hon. David D. Dowd, Jr.,J.
-~Vs- ,
CASE NO. 1317
JESSE BLACK
_—_— —_— —_—
Decided Ylouw’ 22 1975 _
De fendant-Appellant
APPEARANCES :
WILLIAM F. McKEE
Richland County Prosecuting Attorney
38 South Park
Mansfield, Ohio 44902
ATTORNEY FOR PLAINTIFF-APPELLEE
KENNETH G. FRIZZELL
FRIZZELL & HENDRICKS CO., L.P.A.
21 South Franklin Avenue
Mansfield, OHio 44902
ATTORNEY FOR DEFENDANT-APPELLANT
DOWD, J.
This is an avpeal from a death sentence arising
from a conviction on two counts of aggravated murder, each
charging a purposeful killing while the defendant was perpe-
trating a robbery. Both killings occurred on January 21, 1974.
6a
Both victims died as a result of a single gun shot wound.
The first killing took place in late afternoon at the
Bel-Aire Motel in Ontario and the motel manager, Olga
Ladderman, was the shooting victim. The second killing
occurred several hours later in Mansfield when Robert
Staples, the operator of the East Side Beer Dock, was shot.
The defendant was subsequently indicted in
February, 1974. The case was tried in May of 1974 to a
jury. The prosecution presented overwhelming proof of
the defendant's guilt. The testimony included admissions
to the killings made by the defendant to his girl friend,
June Smith, ( R.241, 313 ) and to several other friends
( R. 318, 394 ), and separate confessions as to each
killing with considerable details. ! The fatal bullets,
9 MM caliber, were recovered and expert opinion testimony
was offered that both bullets had been fired from the same
weapon, a Walter P-38 or Luger ( R. 187 ). Another friend
testified to have seen a German Luger-like pistol in an
automobile under defendant's control the night of the
killings ( R. 213 ).
offe
1. Black admitted Olga Ladderman's killing but denied killing
Staples, admitting only that he was involved with his friend,
— Eatron in the second robbery and that Eatmon had killed
Staples.
7a
The detense relied upon the presumption of
innocence and presented no direct testimony claiming
innocence. The jury found the defendant guilty of both
counts and also guilty of aggravating circumstances in
connection with each homicide. ( R.C. 2929.04 (A)(7) ).
Following the verdict, the trial court ordered
a pre-sentence investigation and a psychiatric examination
in compliance with R.C. 2929.03 (D).
Subsequently, in July of 1974, the trial court
conducted the hearing required pursuant to the provisions
of R.C. 2929.03(D) and at its conclusion, ruled that none
of the three mitigating circumstances provided by R.C.
2929.04 had been established and imposed the sentence of
death as required by R.C. 2929.03(E).
The defendant-appellant has filed thirteen assign-
ments of error. We consider those assignments to naturally
fall into the following five catagories:
I. Black's oral and written statements should
have been suppressed. (Assignment of error #13)
II. Ohio's death penalty is unconstitutional.
(Assignments of error #11 and #12)
8a
III. The sentencing statute, R.C. 2929.04(B) (3).
is vague and ambiguous.
(Assignment of error #10)
IV. The procedure followed in the mitigation
hearing was erroneous.
(Assignments of error #3, #4, #5, #6, #7,
and #9 ).
V. The defendant was denied effective counsel.
(Assignments of error #1, #2, and #8).
We shall consider the five subjects chronologically.
: *
We turn first to consider whether the defendant's
oral admissions and written confessions were properly
admitted. Prior to the trial, the defendant filed a motion
to suppress both oral and written statements made to the ,
police claiming that the statements were made without counsel,
made without a warning or explanation of the defendant's
rights, and that the statements were made under circumstances
rendering them inadmissible due to the defendant's mental
and physical condition.
The trial court conducted a pre-trial evidentiary
hearing in response to defendant's motion to suppress the oral
and written statements. The state introduced testimony
9a
establishing that the defendant made incriminating oral
admissions and then signed and initialed two statements
on the afternoon of February 13, 1974. The first written
statement described in considerable detail the motel slaying
in Ontario. The second written statement, similar as to
extensive detail, described the Mansfield killing. Copies
of the two confessions are mechanically reproduced and
attached as Exhibits A and B.
The trial court ruled, prior to trial and in
compliance with Criminal Rule 12(E), that none of the oral
or written statements were taken in violation of the defen-
dant's constitutional rights and the motion to suppress was
overruled.
A review chronologically of the interrogation and
responses of the defendant leading to the taking of the
written confessions on February 13, 1974, is appropriate. Our
review is limited to the testimony presented at the hearing
on the motion to suppress, as the trial court was likewise
limited in weighing the motion to suppress.
THE JANUARY 22, 1974, ARREST, LINEUP AND INTERVIEW.
Black was arrested at 8:13 a.m. on January 22,
1974, ( M.R.-106 ‘ while in an automobile being driven by
a$e
1. M.R. stands for Motion To Suppress Record.
10a
his girlfriend, Jume Smith ( M.R.-114 ), questioned by
detectives ( M.R.-115 ), placed in a lineup and released
at 5:13 p.m. on the same day ( M.R.-100 ). The defendant
denied any know!l.dye of the killings ( M.R.-115 ).
THE JANUARY 28, 1974, ARREST AND INTERROGATION.
Black was arrested by officers of the Mansfield
Police Department and placed in the Mansfield City Jail on
January 28, 1974, at 6:14 p.m. for investigation of “armed
robbery" and subsequently released on January 30, 1974, at
9:20 a.m. ( M.R.-106 ). He was interrogated by Lt. Hriesk
of the Mansfield Police Department for approximately twenty
minutes on the evening of January 28. The defendant kept
saying "no comment, on advice of his attorney."' ( M.R.-61 ).
The defendant testified that he was repeatedly questioned
during one and one-half days of the incarceration ( M.R.-117, 118).
THE JANUARY 31, 1974, RECKLESS OPERATION ARREST
Black was arrested by officers of the Mansfield
Police Department at 11:15 p.m. on January 31, 1974, for
reckless operation while driving June Smith's car. (M.R.-106,
118 ). He called his lawyer, Rees Davis, from the jail. Mr.
Davis came to the station and the defendant was released after
being given a breath test and a traffic citation. (M.R.-118).
Black was apparently not questioned in regard to the homicides.
lla
THE FEBRUARY 11 1974, ARREST ON A BENCH WARRANT
LEADING TO THE SUBSEQUENT CHARCE OF POSSESSTON
OF MARTJUANA.
Black subsequently appeared in traffic court on
February 6, 1974, in regard ‘o the traffic citation issued
January 31, 1974, one day after the February 5, 1974, desig-
nated date. Apparently a bench warrant was issued after
the failure of the defendant to appear on February 5, 1974,
and not withdrawn despite the February 6, 1974, appearance.
On February 11, 1974, the defendant was arrested at 10:12 a.m.
on the bench warrant that should have been withdrawn following
the February 6th appearance. The defendant was searched
and charged with the additional offense of possession of
marijuana ( M.R.-106 ). He appeared in open court on
February 12, 1974, on the charge of possession of marijuana
and bond was initially set at $100.00. Bond was subsequently
increased on February 12, 1974, to $5,000.00 ( M.R.-121 ).
The defendant was unable to post bond. He remained in the
Mansfield City Jail held on the possession of marijuana charge
until he was subsequently charged at 7:10 p.m. on February
13, 1974, with aggravated murder in connection with the two
homicides at issue in this appeal.
12a
THE FIRST FEBRUARY 11, 1974, QUESTIONING.
Following the February 11, 1974, arrest for
possession of marijuana. Black was first questioned in
the Mansfield City Jail by Lt. Hriesk and Patrolman
Hildebrand. The questioning began at 10:24 a.m. A “Miranda”
waiver and warning card was displayed and read to Black.
The card with the "warning" language on one side and
the "waiver" language on the other side, was in the following
forn:
NAME LOCATION
Having been taken into custody or your freedom of
action significally restrained you are advised:
1. You have the right to remain silent.
2. What you say can be used against you in a court
of law.
3. You have the right to the presence of an attorney
while being questioned.
4. You have the right that if you can't afford an
attorney, there will be no questioning until one
is appointed for you.
5. You have the right to stop making a statement
once started.
“Officer Signature ~ Date
Witi.ess Signature Time
13a
WAIVER
I have read on this card the statement of my
rights and understand what my rights are. I
do not wish to remain silent. I do not want
an attorney preseni.
Witness Signature Subject Signature
Time Date
Lt. Hriesk described the practice of the Mansfield
Police Department in the use of the rights card and stated
that the practice was "to read it to the individual and
ask if he understood those rights and ask him to sign the
card and when he refused to sign the card, mark on the card
the fact of the refusal." ( M.R.-38 ). In response to this
practice, Lt. Hriesk testified that Black stated that he
was not signing anything, that he understood his rights,
but he refused to say anything about either homicide. No
request was made for a lawyer ( M.R.-28 ) in the interview
that lasted two hours ( M.R.-59 ). State's Exhibit 3 was
introduced as the "Miranda" card used for that questioning.
THE SECOND FEBRUARY 11, 1974, QUESTIONING
Lt. Hriesk and Captain Krauss of the Ontario
Police Department began the second questioning of Black on
February 11, 1974, at 1:45 p.m. Lt. Hriesk testified that
the rights were again read, using a similar but different
card (State's Exhibit 4 ) and again Black stated that he
14a
understood, but refused to sign the card or discuss
either the Ontario Motel slaying or the beer dock slaying.
( M.R.-39,40 ). Apparently as a result of that interview,
Black was permitted to vhone a friend, Sam Horn, and his
attorney, Rees Davis (M.R.-40 ). He reached the office
of Mr. Davis but apparently did not talk with him ( M.R.-63 ).
THE FIRST FEBRUARY 12, 1974, QUESTIONING
Black was first questioned on February 12, 1974
from 8:15 a.m. to 8:40 a.m. by Patrolman Butler and Sgt.
Groscost of the Mansfield Police Department. He was advised
of his rights from a similar Miranda card ( State's Exhibit 1)
and again refused to sign ( M.R.-5 ) and then answered
"no" to most of Patrolman Butler's questions, the nature of
which were not explained.
THE FIRST JESSE _BLACK-JIMMIE EATMON CONFRONTATION ON
FEBRUARY 17, 1974.
pa — ha hh TA en
Black was confronted with Jimmie Eatmon ( a state's
witness who testified to Black's highly incriminating admissions
at the trial on the merits, (R. 314-381) ) in the Mansfield
City Jail at 9:05 a.m., twenty-five minutes after the first
questioning by Butler and Groscost had ended. Present were
Patrolmen Butler, Sgt. Groscost, Lt. Hriesk, Eatmon and Black
( M.R.-8 ). When so gathered, Eatmon was asked to repeat
-10-
15a
"some information that he had given us prior to that”.
(MR. 8, 41 ). Eatmon requested and was given the
opportunity to call his attorney. Black did not make
a similar request (M.R. 41 ). After Eatmon called his
attorney, he returned and according to Lt. Hrieek, told
Black that "he told the police what he knew about the
incident, that he would testify and tell the court, and
that Lt. Hriesk knows all about it". (M.R. 41 ). Eatmon
was removed, Black said nothing and was returned to his
cell.
THE SECOND FEBRUARY 12, 1974, QUESTIONING AND THE
FIRST ADMISSTONS BY BLACK.
The second February 12th questioning produced
the first oral admissions from Black. The questioning began
shortly after the Eatmon confrontation at 10:15 a.m. ~ “h
Lt. Hriesk, Patrolman Butler and Sgt. Groscost pres.. We
set forth Lt. Hriesk's testimony concerning the first
admissions:
Motion to Suppress Hearing.
Question #2, page 42 thru Answer to Question #2, page 44.
Page 42
“— 2 Did you see Jesse again on the 12th?
A Yes.
. 2 At approximately what time?
A About 10:15 in the morning.
-ll- ° ~
l6a
Q. 4 Who was present and where was it?
A. Patrolman Marcus Butler and myself removed
Jesse from his cell and took him into
the lineup room.
.. 3 What was said at that time when he got
in the lineup room?
A. I asked if he understood his rights and he
said yes. I said he should straighten the
matter out, he said before he talked he
would want to talk to his father and girl-
friend. He stated he knew about the woman
he was responsible for the one in Ontario
but she reached for the gun and it went off
but he was not the one that shot the gun
on East Second Street. He said he would
give us the whole story after he talked
to his father and girlfriend.
Q. 6 Did he ask to call his father or girlfriend
at this time?
A. Not at this time no.
7 What was done chen?
A. I asked him if he would repeat the same thing
he told Officer Butler and I to Major O'Neil,
he is chief now. He said he would. I told
him I would get Major O'Neil which I did.
Page 43
Q. 1 What was done after you got Major O'Neil?
A. He was brought into the room and Major O'Neil
advised us to read the Rights card to him
and have him sign it which was done. This
was read by Officer Butler at that time I
did not have that card.
-12-
17a
QO. ?
CD > DBD F fA
uw
I hand you what has been marked for purpose
of identification State's exhibit 2 and ask
if you can identify that?
Yes this is the Rights card which was read
to him at that time by Officer Butler.
This is at what time?
10:20 a.m. They got 1020 hours on here
it was 10:20 in the morning.
Who read that?
Patrolman Marcus Butler.
Were you present when he read it?
Yes.
All right. After the Rights card was
completed what if anything was said or done?
He also then told Major O'Neil that he knew
about it he shot the woman but not the one
down on East Second Street. Then Major
O'Neil at that time asked why, he stated
he said the woman she grabbed the gun. Major
O'Neil asked who was driving the car. He
said Jimmie Eatmon was driving the car, at the
motel Jimmie stayed in the car while Jesse
went in and robbed and shot the woman. Major
O'Neil asked whose automobile they were
using. He stated Jimmie Eatmon had borrowed
it from someone he didn't know who. He
said it was a blue automobile.
Page 44
Q. 1
A.
Did he say anything else about the car?
At that time he thought it belonged to Jimmie
Eatmon or borrowed by Jimmie Eatmon from
somebody else. Jimmie was driving the car.
Then he said Jimmie Eatmon was the person
that shot the man down on East Second Street.
Se
18a
2 Did he sav anything else at this time?
Then he stated he wanted to talk to his
father and also his girlfriend. Again
he demands to be brought back face to
face with Jimmie Eatmon again and he
would give his statement. "
The warning card ( State's Exhibit 2 ) used in this
interview was signed by Jesse Black on the line under the
large word "NAME" in the upper left hand corner on the
warning side of the card but Black refused to sign the waiver
( M.R. 10 ).
Lt. Hriesk also testified that Black's father came
to the police station after the second interview on February
12, and Black told his father that "he (Jesse Black) had
told us he had done it just to get us off his back" ( M.R. 47).
THE SECOND JESSE BLACK-JIMMIE EATMON CONFRONTATION ON
FEBRUARY 12, 1974.
Lt. Hriesk testified about a second Black-Eatmon
confrontation on February 12, 1974, that occurred after the
second questioning which had produced the first oral admission
by Black. Lt. Hriesk asked Black if he wished for another
face-to-face meeting with Eatmon. Black agreed. When con-
fronting Eatmon, Hriesk testified that Black stated:
Motion to Suppress Hearing.
Answer #1, page 45 thru Answer #3, page 46.
Page 45
At this time Jesse said I am tired of lying(sic)
for both of us. Jesse acted like he was mad
at this time he said Eatmon was driving the
car at the motel at Ontario, he went inside
and rob the woman and shot her. Also he
190 °°”
sk Ditte hietamo whee cam le had at that
thine caneb te sceiel Gt was bduae and wanted
to know who it) belonmved to and Jimmie
Katmon had borrowed it from somebody
at Beulah Fayv's on Bowman Then Jimmie |
Katmon interrupted and said he knew several
fellows at Beulah Fay's that had borrowed
the automobile and one person's name was
Grandview or somethiny, similar, he did't
know his name but he was out alt Beulah
Fay's all the time. Jesse told Jimmie
had cased the motel that morning the day
of the shooting in Ontario. While casing
the motel Jimmic talked to the woman about
. room rates, told her he didn't have an
money, he would get money and come back.
Jimmie denied knowledge of the robbery and
shooting or beiny, at the motel.
At that time Jesse told how they drove
down to the beer dock on East Second Street
parked near the Rib House.
Page 46_
> § Where is the Rib House?
A. Down around Second and Hedges. He didn't
give the number at that time I knew where
it was. He cla ms he got out and walked
around to the rear of the drive through
beer doct (sic). Jimmie Eatmon drove
and got in the driver seat and drove the
red Cougar inside the beer dock.
Q. 2 Did he say anything else about the red
Cougar whose it was?
A. Not at that time. He said Eatmon shot and
robbed Mr. Staples and pick him up at the
rear of the building. Jesse also said the
weapon used in both of these matters belonged
to Jimmie Eatmon. Eatmon denied any know-
ledpye of any weapon and shooting Jesse was
talking about. And Jimmie again told Jesse
he told the police what he knew about the
the matter and ne would tell it in court.
20a
0. 3 What happened then?
A. It was about this time Jesse asked Jimmie
how much money did you get. Jimmie said
what are you talking about and Jimmie
denied any part in the robbery again.
Then Jesse dian't want to say anything more
until he talked to his father and he was
returned to his cell.”
THE FEBRUARY 13, 1974, INTERVIEW RESULTING IN THE
WRITTEN CONFESSION.
On February 13, 1974, Black was again questioned.
Present were Captain Krause of the Ontario Police Department,
Major O'Neil, Captain Groscost and Lt. Hriesk of the Mansfield
Police Department. At the outset, Major O'Neil advised Black
that he was charged with agyravated murder and could get either
life or death and then asked if he wanted to make a statement
( M.R. 76). Black answered affirmatively and was then advised
of his rights from State's Exhibit 5, another Miranda warning
and waiver card. Black signed the card on both the warning
and waiver side and placed his initials on the warning side of
the card five times ( M.R. 76, 77 ). After the signing, Major
O'Neil asked Black about beth shootings. Two separate state-
ments were then taken. The first statement ( Exhibit "A" ) con-
sisted of questions and answers covering the Ontario shooting.
The second statement, ( Exhibit "B" ) also consisting of
oft.
2la
questions and answers, covered the Mansfield beer dock
slaying. Black initialed and signed both confessions.
BLACK'S POST CONFESSION ADMISSIONS ON FEBRUARY 13, 1974.
After the written confessions were completed, Black
talked to his sister, his father, and his girlfriend, June
Smith, and Reverend Griffith, at the jail. Lt. Hriesk
testified to the content of Black's conversations with his
father, girlfriend, and sister. Black told his father that
“the woman grabbed his gun and the gun went off and it was
an accident". ( M.R. 48 ). Black was unable to explain in
response to his father's question why he had done it. Black
told June Smith, his girlfriend, in Lt. Hriesk's words, that
"he told us the truth". Black told his sister that he told
the truth and that he robbed the lady, she grabbed the gun
and it went off. The sistexs then admonished Black saying,
“you are trying to hang yourself".
BLACK'S TESTIMONY
Black testified in support of his motion to suppress.
He claimed that he had been subjected to constant day and
night questioning during the three day period of February 11
to February 13, 1974, that he had not been permitted to
change his clothes or to eat, and had only had eight hours
of sleep during the three day period. He claimed that one
of his attempts to call Mr. Davis, his lawyer, was rejected
ol Pe
22a
by Major O'Neil who told him that “you (Mr. Davis) had to
drop my case”.
Thus we consider whether the evidence presented at the
suppression hearing supports the trial court's determination
that the dictates of the Miranda Rule were followed and that
the oral and written statements were voluntary.
THE MIRANDA ISSUE
A. THE WARNINGS
We turn first to a consideration of the Miranda
issue. The prosecutor established that Black was repeatedly
warned during the various interrogations on February 11, 12
and 13, 1974. The written and signed confessions included a
Miranda warning. We find ample testimony and proof to
establish the fact of the Miranda warning throughout the
questioning process.
A careful examination of the commencement of the
second questioning on February 12th is appropriate as it pro-
duced the first damaging admissions. Lt. Hriesk testified
that the complete Miranda rate was not administered until
after the first admission.
-18-
2. See Hriesk's testimony beginning at page 11 of this opinion.
23a
First one could argue that Black's first admission
in response to Lt. es suggestion that "Black straighten
the matter out" was "volunteered" and thus not the result
of exstediol interrogation negating the application of Miranda.
See Haire v. Sarver, 437 Fed. 2d. 12842, Cert. Denied, 404
U.S. 910. We think not. Under all the circumstances, we
construe Lt. Hriesk's suggestion to be a continuation of the
custodial interrogation. However, we find Black's response,
upon entering the lineup room, that he understood his rights
following two Miranda warnings administered on the previous
day and a warning just two hours earlier on the same day in
question, to be sufficient to establish compliance with the
warning requirement of Miranda prior to Black's first admissions.
B. THE WAIVER
Counsel for the defendant contends that the defendant's
refusal to sign the "waiver" portion of the Miranda warning
introduced as exhibits at the suppression hearing, ( state's
exhibits 1 through 4 ) negate the Miranda waiver. If we assume
arguendo that the defendant's persistent refusal to sign the
waiver portion of the Miranda warning card was in fact a
declaration that he would not waive the rights contained in the
warning, does such declaration invalidate a subsequent waiver.
We think not. A valid waiver of the rights contained in the
Miranda warning may be either expressed or implied.
-19-
24a
The defendant's answers to questions put to him
after repeated Miranda warnings may be sufficient to imply
a waiver of the "Miranda rights’ notwithstanding his re-
fusal or failure to sign a "waiver" portion of a Miranda
card and in the absence of an express declaration of waiver.
In determining whether to so imply a waiver, the court may
consider the surrounding circumstances. In the instant case,
we find that Black's decision to respond affirmatively
to Lt. Hriesk's initial suggestion that he "clear up matters”
and the recently completed confrontation with Eatmon are
sufficient surrounding circumstances to justify a trial
court's finding of waiver at that crucial point.
Counsel for the appellant also contends that the request
by Black, admi.ted by the state, to confer with attorney
Davis made after the incarceration beginning February 11th
commenced, was sufficient to negate any apparent subsequent
waiver. We do not agree.
After his request at the second questioning on February
11, 1974, Black was given the opportunity to call his lawyer.
Black's action, in subsequently deciding to answer the police
officer's questioning after still another Miranda warning
repeating his right ot counsel, constituted affirmative action
by Black, which under the circumstances, we equate with waiver
of the right to counsel. See //.S. v. Coleman, 322 Fed. Sup.
550; Rouse v. State, 265 Ind. 670.
«98-
25a
Finally, in connection with the written confession
taken on February 13, 1974, it is apparent that Black
executed an express waiver of his Miranda rights by the
manner in which he signed the waiver card and initialed
the same and then proceeded with the execution of the
confession and signed the same with both confessions con-
taining an express waiver of his Miranda rights.
In conclusion, we find that the trial court's con-
clusion that the Miranda rule was complied with is fully
supported by our review of the record.
THE ISSUE OF VOLUNTARINESS
It is fundamental that a challenge to the
admissibility of a confession on the claim that was given
under circumstances that render it involuntary must be
resolved by the trial judge. See /uckszon v. Denno,
11 Law Ed. 2d. 871, 376 U.S. 503; State v. Perry, 14 Ohio
St. 2d. 256; State v. Wigglesworth, 18 Ohio St. 2d. 171.
Frequently such a challenge is determined by the
trial court only after he determines whom to believe when
the testimony is contradictory. Contradictory testimony was
offered on the subject of whether Black was fed following
his February llth incarceration and through the time of the
February 13th written confessions. Denial of food for a
o21-
26a
protected period would obviously render a confession
involuntary. But the state offered testimony to rebut
this claim and it supports the trial court's finding of
voluntariness, assuming as we must, that the trial court
believed the testimony offered by the state.
We find no authority for the proposition that the
denial of the change of clothing is of such magnitude as
to render a confession involuntary.
The defendant's claim that he had only eight hours
of sleep on the evenings of February 11 and 12, was counter-
balanced by the testimony of the officers that Black looked
normal during the questioning. Lt. Hriesk's testimony
indicated that Black's father, sister, girlfriend and
Reverend Griffiths each saw the defendant shortly after he
signed the February 13th damaging statement. However, no
testimony was offered by any of those four persons to support
Black's allegation of exhaustion due to the lack of sleep.
The trial court's rejection of the loss of sleep claim on
the issue of voluntariness, is supported by the record.
Remaining however, is the question of whether the
admitted repeated questioning of Black which led to the first
oral admissions and subsequently the written confession,
demonstrates, as a matter of law, an involuntary confession.
-22-
27a
Persistent questioning can, under certain circumstances,
render a confession involuntary. See (u/ombe v. Connecticut,
367 U.S. 568, 6 LL. Ed. td. 10387. However, we do not find
the questioning sessions conceded by the state to have
taken place to be of such a nature and number as to rule
the subsequent oral admissions and written confessions
involuntary. Further, the chronological analysis of the
various interrogation sessions and confrontations with
Jimmie Eatmon presents persuasive evidence for the proposi-
tion that the oral admissions and subsequent written con-
fessions were prompted, not by repeated questioning leading
to a destruction of Black's will and control, but by the
first Eatmon confrontation. The defendant had steadfastly
denied any involvement or knowledge of both slayings on the
22nd of January, the 28th of January and during the two
sessions on the llth of February and the first question session
on the morning of the 12th of February. It was only after the
first Black-Eatmon confrontation in which Eatmon indicated to
Black, notwithstanding their friendship, that he was co-opera-
ting with the police and would testify, that the defendant
made his first oral admissions. Those admissions followed
promptly on the heels of the confrontation and induced an
-23-
28a
incrimination by Black of Eatmon. That proposition is
further supported by the nature of the second confrontation
shortly after the first admissions were made by Black when
Black further attempted to incriminate Eatmon as a guilty
co-varticipant in the two crimes.
In cc clusion, we find that the evidence presented at
the lengthly suppression hearing supports the trial court's
conclusion that Black's oral admissions and written con-
fessions were the product of Black's free choice and thus
voluntary and admissible. The i3th assignment of error is
overruled.
Il.
THE CONSTITUTIONAL CHALLENGE TO THE OHIO DEATH PENALTY
In 1972, the United States Supreme Court in Furman v.
Georgia, 408 U.S. 288, by a five to four vote, reversed three
convictions holding that the death penalty, as applied,
constituted cruel and unusual punishment. Each of the nine
justices wrote an opinion explaining his position and vote.
Two of the five majority justices, Justice Stewart and Justice
White indicated that more precise legislative pronouncements
on the application and use of the death penalty freeing the
imposition of the penalty from a totally discretionary appli-
cation as existed in the cases cdlecided by Furman, supra,
would not run contrary to the cruel and unusual punishment
restriction imposed by the eighth amendment to the United States
Constitution.
o26-
29a
The Ohio Legislature then enacted a new death penai-v
providing for a mandatory death penalty for seven types of
aggravated murder, subject only to a subsequent judicial
finding of a legislatively specified mitigating circumstance.
For the penalty to be death in Ohio, the trier of fact,
be it a jury or a panel of judges, must find proof of the
allegation of aggravated murder beyond a reasonable doubt and
in addition the jury must separately find that one or more
alleged specifications to have been proven beyond a reasonable
doubt. Stated otherwise, the mere allegation that the
defendant committed aggravated murder without an attending
allegation of an aggravating circumstance does not constitute
an indictment charging capital murder. It is only where the
indictment separately alleges an aggravated circumstance that
the potential penalty is death. Where the jury returns a
verdict of aggravated murder, and also finds, as alleged in
the indictment, proof of an aggravating circumstance as is
the case here, then the responsibility for proceeding with the
case shifts to the trial judge or in the case of a trial to
three judges, to the three judges. The trial judge is then
required to conduct a post conviction hearing at which time
the court receives reports and hears evidence to determine
whether or not the proof of any one of the three specified
-25-
30a
mitigating civeumstaness™ is established bv a preponder-
ance of evidence. The legislature has directed the trial
court that if he finds proof of any one of the three miti-
gating circumstances, then it is his obligation, notwith-
standing the conviction and the jury determination that an
aggravating circumstance applied to the homicide, to impose
upon the defendant a punishment of life imprisonment. On
the other hand, if the court finds a failure to prove any
one of the three mitigating circumstances, then the legis-
lature has imposed upon the trial court the mandatory duty
of sentencing the defendant to death.
(B) Regardless of whether one or more of the agravating
circumstances listed in division (A) of this section is
specified in the indictment and proved beyond a reasonable
doubt, the death penalty for aggravated murder is precluded
when, considering the nature and circumstances of the offense
and the history, character, and condition of the offender, one
or more of the following is established by a prepondence (pre-
vponderance) of the evidence:
(1) The victim of the offense induced or facilitated it.
(2) It is unlikely that the offense would have been committed,
but forthe fact that the offender was under duress, coercion,
or strong vrovocation.
(3) The offense was primarily the product of the offender's
psychosis or men'al deficiency, though such condition is
sufficient. to establish the defense of insanity."
3la
in analyzing che Lepislactiorn actomted cre hrc bee es tert
restore capital punishment in the aftermath ot cner a
supra, we first conclude that the tabric and design of the
Ohio capital punishment provisions strictly limits the situ-
ations where capital punishment is a potential sentence by
adding the aggravating circumstance factor. The legislature
has further restricted the imnosition of capital punishment
to only those instances where a mitigating circumstance is not
proven in the subsequent judicial proceeding conducted in the
absence of the inhibitions previously imvosed in Ohio in capital
cases by the simultaneous guilt-punishment determination. We
find that the imposition of the death penalty pursuant to the
Ohio legislative mandate does not constitute cruel and unusual
punishment.
We further find that the Ohio legislation meets the objectim
raised to previous capital punishment legislation by Justices
White and Stewart of the United States Supreme Court. Assuming
no change in the judicial philosophy of Justices White, Stewart,
Burger, Powell, Rehnquist, and Blackmun, all members of the
present United States Supreme Court, we find that the recent
Ohio legislation enacting the death penalty to be constitutional
in the context of the previously announced opinions of the major-
ity of the members of the present United States Supreme Court.
Thus the assignments of error numbers eleven and twelve, alleging
the unconstitutionality of the capital punishment provisions in
the Ohio legislation are overruled.
II1.
THE CHALLENGED SENTENCING STATUTE, R.C. 2929.04(B) (3).
The tenth assignment of error claims that the third
-?7-
32a
“itis stape cirecets*ance, avattable upen proof te the detendant
to avoid the death penalty. is vayue and ambiguous. We tind
no such vaguness and ambiguity. The fact that under normal
circumstances it would be difficult for an offender to prove
that his act of killing another human being was primarily the
product of his own psychosis or mental deficiency does not
result in a "vague and ambiguous" declaration. -The tenth
assignment of error is overruled.
IV.
CONDUCT OF THE MITIGATION HEARING.
Following the jury conviction in May, 1974, the trial
court ordered’ a pre-sentence investigation and a psychiatric
examination pursuant to R.C. 2929.03(D). On July 8, 1974, the
post-trial pre-sentence mitigation hearing mandated by R.C.
2929.03(D) was held. The trial court advised counsel that
the appointed psychiatrist Dr. Massie and the psychologist
who had assisted the psychiatrist were available for "“cross-
examination". The defense counsel advised the court that he
had received, reviewed and studied the pre-sentence report and
also received, reviewed and studied the report of Dr. Massie,
the psychiatrist, as to the examination of the defendant. Defense
counsel indicated that he wished to have each of the doctors
available so that he might examine them under oath. Then a
brief discussion took place between the court and counsel as to
the procedure to follow at the mitigation hearing. After the
court expressed his views, counsel for the defendant stated
that he was “in accord with the court's stated position, that
~28-
33a
is as of Status quo at this momen: that the death
penalty would be imposed and the burden to go further
would fall upon the defendant". Having so stated, the
counsel for the defendant indicated that he wished to
examine first the psychiatrist and second the psychologist
and then make a judgment whether to produce evidence. With
that Dr. Massie, the psychiatrist, was called to the stand
and was questioned extensively by the counsel for the
defendant. Then the prosecutor cross-examined the doctor.
At the conclusion of Dr. Massie's testimony, defense counsel
indicated that it was no longer necessary to call the
psychologist because Dr. Massie had produced and explained
the report of the psychologist.
The defendant was given the opportunity to testify
either under oath or to make a statement not under oath and
he declined. No further evidence was offered or presented.
The court then made the finding that none of the three miti-
gating circumstances had been established by a preponderance
of the evidence.
The testimony offered by Dr. Massie including the
psychologist's reports indicated that Dr. Massie had inter-
viewed the defendant on three occasions and had taken his
history and had examined him rather closely as to his back-
ground. The Dsychologist's report stated that the testing
results indicated that the defendant was borderline mentally
o29-
BEST COPY el
deficient. The psychiatrist, despite the urging of the defense
counsel, did not state that the defendant's conduct was
primarily the product of mental deficiency or psychosis in
the context of the third mitigating circumstance. The
psychiatrist did testify that he would agree that the mental
deficiency of the offender was a factor in the offense.
The appellant assigns six separate assignments of
error challenging the conduct of the mitigating hearing.
First, by assignment of error number three, the appellant
claims that the trial court should have conducted the question-
ing of the psychiatrist. In support of this contention, the
appellant has attached a transcript of the mitigation hearing
conducted by the Hon. George J. McMonagle, the Cuyahoga County
Common Pleas Court in State of Ohio v. Davis, Cuyahoga Case
No. CR 13356, where Judge McMonagle conducted the questioning
of the psychiatrist and then provided the opportunity to
counsel for the state and the defendant to cross-examine. We
do not consider whether Judge McMonagle's method of handling
the mitigation hearing was according to law, but we do find
that the manner by which Judge Larson proceeded was in accordance
with law. We find no requirement in the statute that the
trial court in the mitigation hearing has the primary duty to
question the witnesses who appear on the issue of whether or not
a mitigating circumstance exists.
oe
35a
We hold the contention that the mandatory oblipation
of the trial court to hold the mitigation hearing should
be construed as requiring the trial court to initiate the
questioning process of the psychiatrist to be without merit.
The fourth assignment of error centers on the following
question and answer in Dr. Massie's testimony:
"Q. Were you able to form an opinion as to
whether his involvement, whatever it may
be, was primarily the product of such mental
deficiency?
A. No. sir. I was not able to.”
Appellant contends that more questioning should have
followed to determine why the psychiatrist was "not able to".
We disagree. We construe the psychiatrist's answer to the
question to be simply that he was not prepared to nor would
he testify that the offender's action was "primarily" the
product of the mental deficiency.
The fifth assignment of error claims that the psychiatrist
should have had available to him the pre-sentence report required
by R.C. 2929.03(D). We find no such requirement nor do we
find any error in the psychiatrist not having the pre-sentence
report. The psychiatrist testified that he carefully examined
the appellant to determine his background, history and nature.
The sixth assignment of error claims that the psychiatrist
paid no heed to the history, character, and condition of the
defendant. We find no support for such allegation having
- -
36a
reviewed the psychiatrist's testimony.
The seventh assignment of error claims that the court
erred in not calling the psychologist to the stand. The
psychologist was called upon bv the psychiatrist to aid
him in his report. The report of the psychologist was
throughly explained by the psychiatrist and not challenged
and was apparently acceptable. We find no error in the court
not insisting upon the psychologist being called to the
stand. Counsel for the defendant specifically indicated
that he no longer believed it necessary to call the psychologist
to the stand. To now challenge the failure of the psychologist
to be called to the stand as an error on the vart of the court
is not well taken.
The ninth assignment of error claims that the court
failed to take into consideration the first and second miti-
geting circumstances in deciding that no mitigating circum-
stances had been established. We find no such error. The
trial court heard testimony presented to the jury. None of
the testimony presented to the jury remotely suggested that
either the first or second mitigating circumstances had been
obtained. The defendant offered no testimony to suggest either
the first or second mitigating circumstance obtained. The
evidence vresented was designed to come within the third
mitigating circumstance. Finally, the court did make an
express finding that none of the three mitigating circumstances
had been established as to either of the two homicides.
-32-
37a
For the foregoing reasons, the third, fourth, fifth,
‘ sixth, seventh, and ninth assignments of error are overruled.
v.
THE CLAIM OF DENIAL OF EFFECTIVE ASSISTANCE OF COUNSEL.
The anpellant claims that his selected counsel
at the trial level denied him effective assistance of counsel.
We commence our review of this claim by noting that the
defendant's trial counsel, in addition to attending all hearings
and continually engaging in extensive cross-examinations, filed
the following motions and requests:
l. April 3, 1974, a demand for discovery;
2. April 3, 1974, a Criminal Rule D(2) request for
notice from the prosecuting attorney of his
intention to use specified evidence;
3. April 4, 1974, a request for a Bill of
Particulars with ten sections;
4. April 4, 1974, a motion for an order to establish
bail;
5. April 5, 1974, a motion to compel discovery;
6. April 19, 1974, a motion to suppress the statement
of the defendant;
ea poh 22, 1974, a notice of intention to seek a
change of venue;
8. April 22, 1974, a notice of alibi;
9. May 13, 1974, a motion for specific instructions
to the jury; and,
ofS
38a
lO. May 28, 1974, a motion for new tria) based
on ten 8Tounds.
Be A failure to Challenge the repecitutionality
of the Ohio death Penalty Statute;
2. His Performance at the mitigation hearin where
he failed to call a second P8ychiatrigt Or the
Purpose of eliciting a contrary opinion to the
one expressed by Dr. Massie:
3. — failure CO call the P8ychologist, Dr. Grafe;
and,
4. His drinking during the trial as demonstrated by
affidavits attached to “ppellant's brief and
signed by the 8ppellant's father and sister.
We disregard the affidavits concerning the issue of
drinking. Our review of the Claim of the denial Of ineffec-
tive counsel .ig limited to the record before us. The affidavits
Submitted in the 4ppellant's brief do not Constitute ¢@ Part
Of the Tecord before Us for our review.
39a
statute unconstitutional as it pertains to the death penalty,
it is extremely unlikely. The greater likelihood is that
the issue of the constitutionality of the new Ohio death
penalty statute will be resolved by The Ohio Supreme Court
or the United States Supreme Court. It is apparent from
the lengthy suppression hearing, for which the transcript of
proceedings numbers approximately 150 pages, that the
primary strategy of defendant's trial counsel was to attempt
to suppress the defendant's lengthy confessions and then
hope to free the defendant on the basis that the defendant's
girlfriend and other friends could not be believed as to the
defendant's oral admissions of guilt respecting the slayings
of Olga Ladderman and Robert Staples.
To argue that counsel for the defendant should have
centered his attention on the constitutionality of the Ohio
death penalty statUte, constitutes an exercise in second
guessing but fails to establish the denial of effective
assistance of counsel. If this court were to hold that
defendant, after selecting his own counsel, can gain a new
trial by demonstrating that his own selected counsel denied
him effective assistance of counsel by failing to attack the
constitutionality of the statute under which is is being tried,
then the state is powerless to proceed with effective prose-
cution.
oe
40a
Additionally, we find that the appellant's claim that
the trial counsel should have called a second psychiatrist
to testify and that the trial counsel should have called
the psychologist to testify, notwithstanding his determin-
ation as an advocate that Dr. Massie, the psychiatrist,
had produced and explained the test results of the psycholo-
gist, fails to establish a denial of the ineffective assistance
of counsel.
An adverse result to the defendant is not to be
equated with a denial of effective assis-ance of counsel.
In reviewing the allegations claiming a denial of effective
assistance of counsel, we conclude that the appellant has so
equated a conviction and death penalty. The first, second
and eighth assignments of error are overruled.
In conclusion we find from a review of this record, that
the defendant has been convicted of two robbery-killings
committed within hours of each other under circumstances which
indicate that he engaged in both advance planning and subse-
quent conduct designed to conceal his responsibility for those
teprehensible crimes. We find that the conviction and subsequent
sentence are consistent with the Ohio Laws which we find to be
constitutional and in comformance with due process. The judg-
ment and sentence of the Richland County Common Pleas Court of
Mansfield, Ohio, is affirmed.
Rutherford, P.J. and Putman, Sg
- 36-
4la
Note: Page 42 a through 45a of this Appendix were not
of reproducible quality. They are the Opinion
of the Court in Ohio v Black, 48 Ohio St.2d 262.
THE SUPREME COURT OF THE STATE OF OHIO
THE STATE OF OIIIO, 1g". TERM
City of Columbus. J
State of Ohio,
Appellee,
vs. \
Jesse Black,
Appellant.
It is ordered by the court that rehearing in this case is denied.
LTHOMAS L. STARTZMAN, Clerk of the Supreme Court of the State of Ohio,
do hereby certify that the foregoing entry was correctly copied from the records of
said Court, to wit, from Journal WNo...........Page..........
IN WITNESS WHEREOF, I have hereunto subscribed
my name and affixed the seal of the Supreme Court
Cees Be mn ,
Clerk.
— .... Deputy.
~,. 4298
THE STATE OF OIIO,
19.77.) TERM
City of Columbus.
State of Ohio, To TE. January 21, 197.
Appellee,
No....16=219
vs.
Jesse Black,
Appeliant. EN TR Y
( RICHLAND COUNT Y)
Upon consideration of the motion, filed by counsel for appellant, to stay
execution of sentence pending the timely filing of an appeal to the Supreme Court
of the United States, it is therefore
ORDERED that execution of sentence be, and the same hereby is, stayed,
pending the timely filing of an appeal to the Supreme Court of the United States.
It is further ORDERED that if a timely notice of appeal is filed to the Supreme
Court of the United States, this stay will automatically continue pending final determination
of the appeal by that Court.
It is further ORDERED that the Clerk of this Court shall forthwith send a
certified copy of this Stay of Execution to the Superintendent of the Southern Ohio
Correctional Facility, who shall acknowledge receipt thereof.
ae
CHIEF JUSTICE
I, THOMAS L. STARTZMAN, Clerk of the Supreme Court of the State of Ohio,
do hereby certify that the foregoing entry was correctly copied from the records of
said Court, to wit, from Journal No........... ——
IN WITNESS WIHEREOF, I have hereunto subscribed
my name and affixed the seal of the Supreme Court
this.2\st_ day of........January >) Rie
THOMAS L. STARTZMAN _
By Deputy.
04 378
’ 47a
OHIO STATUTORY PROVISION
vw
(1) Ohio Revised Code, Section 2903.01 Aggravated Murder.
(A) No person shall purposely, and with prior
calculation and design, cause the death o
another.
(b) No person shall purposely cause the death
of another while committ or attempting to
commit, or while fleeing immediately after com-
mitting or attempting to commit kidnapping, rape,
aggravated arson or arson, aggravated robbery or
bery, aggravated burglary or burglary, or
escape.
(Cc) "Gheoves violates this section is guilty of
aggravated murder, and shall be punished as
provided in section 2929.02 of the Revised Code.
(2) Ohio Revised Code, Section 2903.02 Murder.
(A) Wo person shall purposely cause the death
of another.
(B) Whoever violates this section is guilty of
murder, and shall be punished as provided in sec-
tion 2529.02 of the Revised Code.
(3) Ohio Revised Code, Section 2903.03 Voluntary Man-
slaughter.
(A) No person, while under extreme emotional
stress br t on by serious provocation reason-
ably sufficient to incite him into using deadly
force, shall knowingly cause the death of
another.
(B) Whoever vioaltes this section is guilty of
yond manslaughter, a felony of the first
gree.
(4) Ohio Revised Code, Section 2903.04 Involuntary
Manslaughter.
(A) No person shall cause the death of another
as a proximate result of the offender's committing
Or attempting to commit a felony.
(B) Wo person shall cause the death of another
as a proximate result of the offender's committing
Or attempting to commit ea misdemeanor.
(C) Whoever violates this section is wnt of
involuntary manslaughter. Violation of division
A) of this section is a felony of the first
ree. Violation of division (B) of this section
is a felony of the third degree.
(5) Ohio Revised Code, Section 2923.03 Complicity.
(A) No person, act with the kind of culpa-
bility required for the commission of an offense,
shall do any of the following:
(1) Solicit or procure another to commit the
offense;
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(2) Aid or abet another in committing the
offense;
(3) Conspire with another to commit the offense
a. on of section 2923.01 of the Revised
Code;
(4) Cause an innocent or irresponsible person
to commit the offense.
(B) It is no defense to a charge under this
sect/on that no person with whom the accused was
in complicity has been convicted as a principal
offender.
(C) Wo person shall be convicted of ceuphtet oy
under this section unless an offense is actually
committed, but a person may be convicted 6f
compiicity in an attempt to commit an offense in
violation of section 2923.02 of the Revised
Code.
(D) No person shall be convicted of complicity
under this section solely the testimony of
an accomplice, unsupported by other evidence.
©) It is an affirmative defense to a charge un-
r this section that, prior to the commission of
or attempt to commit the offense, the actor termi-
nated his complicity, under circumstances mani~
festing a complete and voluntary renunciation of
his criminal se.
(F) Whoever violates this section is guilty of
se in the commission of an offense, and
shall be prosecuted and ished as if he were a
principal offender. A charge of complicity may be
stated in terms of this section, or in terms of
the principal offense.
(6) Ohio Revised Code, Section 2929.02 Penalties for
murder.
(A) Whoever is convicted of ene murder in
violation of section 2903.01 of the Revised Code
shall suffer death or be imprisoned for life,
as determined pursuant to sections 2929.03 and
2929.04 of the Revised Code. In addition, the
offender may be fined an amount fixed by the court,
but not more than twenty-five thousand dollars.
(B) Whoever is convicted of or pleads guilty to
murder in violation of section 2903.02 of the
Revised Code shall be imprisoned for an indefinite
term of fifteen years to life. In addition, the
offender may be fined an amount fixed by the court,
but not more than fifteen thousand dollars.
(C) The court shall not impose a fine in addition
to imprisonment or death for aggravated murder, or
in addition to imprisonment for murder, unless the
offense was committed with purpose to establish,
maintain, or facilitate an activity of, a criminal
syndicate as defined in section 2 3.04 of the
Revised Code, or was committed for hire or for
purpose of gain.
D) The court shall not impose a fine or fines
or aggravated murder or murder which, in the ag-
gregate and to the extent not by the
court, exceeds the amount which offender is or
will be able to pay by the method and within the time
allowed without undue hardship to himself or his
49a
dependents, or will prevent him from making
reparation for the victim's wrongful death.
(7) Ohio Revised Code, Section 2929.03 Imposing Sentence for
A Capital Offense.
(A) If the indictment or count in the indictment
charging aggravated murder contains no specifica-
tion of an aggravating circumstance listed in divi-
sion (A) of section 2929.04 of the Revised Code,
then, following a verdict of guilty of the charge,
the trial court shall impose*sentence of life
at if'ce on the offender.
(B) If the indictment or count in the indictment
Gongs ravated murder contains one er more
specifications of ye circumstances listed
in division (A) of section 2929.04 of the Revised
Code, the verdict shall separately state whether
the accused is found guilty or not guilty of the
principal charge and, if guilty of the principal
charge, whether the offender at ay = or not
uilty of each specification. jury shall be
nstructed on its duties in this regard, which
shall include an instruction that a specification
must be proved beyond a reasonable doubt in order
to support a guilty verdict on such specification,
but such instruction shall not mention the
penalty which may be the consequence of a guilty
or not guilty verdict on any charge or specification.
(C) If the indictment or count in the indictment
charging ravated murder contains one or more
specifications of aggravat circumstances listed
in division (A) of section 2929.04 of the Revised
Code, then, following a verdict of guilty of the
charge but not ontty of each of the specifications,
the trial court shall impose sentence of life
imprisonment on the offender. If the indictment
contains one or more specifications listed in
division (A) of such section, then, following a
verdict of guilty of both the charge and one or
more of the specifications, the penalty to be
imposed on the offender shall be determined:
(1) By the panel of three judges which tried
the offender upon his waiver of the right to trial
by jury;
) A A. trial judge, if the offender was
trie ury.
0) When death may be imposed as a prey
or aggravated murder, the court shall require a
pre-sentence yy and a psychiatric
examination to be made, and reports submitted to
the court, pursuant to section 2947.06 of the
Revised Code. Copies of the reports shall be
furnished to the prosecutor and to the offender
or his counsel. The court shall hear testimony
and other evidence, the statement, if any, of
the offender, and the arguments, if any, of
counsel for the defense and prosecution, relevant
to the penalty which should imposed on the
offender. If the offender chooses to meke a
statement, he is subject to cross-examination
only if he consents to make such statement
under oath or affirmation.
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(8)
(EZ) Upon consideration of the reports, testi-
mony, other evidence, statement of the offender,
and arguments of counsel submitted to the court
pursuant to division (D) of this section, if the
court finds, or if the panel of three } es
unanimously finds that none of the mit —
circumstances listed in division (B) of section
2929.04 of the Revised Code is established by «a
preponderance of the evidence, it shall impose
sentence of death on the offender. =
shall impose sentence of death
Ohio Revised Code, Section 2929.04 Criteria for
Imposing Death or Imprisonment for a Capital Offense.
(A) Imposition of the death penalty for aggravated
murder is precluded, unless one or more of the
following is specified in the indictment or count
in the indictment pursuant to section 2941.14 of
the Revised Code, and is proved beyond a reason-
able doubt:
(1) The offense was the assassination of the
president of the United States or person in line
of succession to the presidency, or of the governor
or lieutenant governor of this state, or of the
president-elect or vice president-elect of the
United States, or of the governor-elect or
lieutenant governor-elect of this state, or of a
candidate for any of the foregoing offices. For
ir ses of this division, a person is a candidate
f he has been nominated for election accord
to law, or if he has filed a petition or petitions
according to law to have his name placed on the
ballot in a primary or general election, or if
he campaigns as a write-in candidate in a
primary or general election.
iF The offense was committed for hire.
3) The offense was committed for the purpose
of escaping detection, apprehension, trial, or
punishment for another offense committed by the
offender.
4) The offense was committed while the
offender was a prisoner in a detention facility
o Sema in section 2921.01 of the Revised
(5) The offender has previously been convicted
of an offense of which gist was the purpose-
ful killing of or attempt to kill another, commit-
ted prior to the offense at bar, or the of fense
at bar was part of a course of conduct involving
the purposeful killing of or attempt to kill two
or more persons by the offender.
6) e victim of the offense was a law
enforcement officer whom the offender knew to be
such, and either tie victim was engaged in his
duties at the time of the offense, or it was the
offender's specific purpose to kill a law enforce-
ment officer.
(7) The offense was committed while the of-
fender was committing, attempting to commit, or
fleeing immediately after committing or attempting
to commit kidnapping, rape, aggravated arson,
-— robbery, or aggravated burglary.
(B) RBegardless of whether one or more of the
aqpeoveting circumstances listed in division (A)
of this section is specified in the indictment and
proved beyond a reasonable doubt, the death
5la
penalty for aggravated murder is precluded
when, considering the nature and circumstances
of the offense and the history, character,
and condition of the offender, one or more
of the following is established r, ”
preponderance of the evidence: (1) The
victim of the offense induced or facilitated
és.
(2) It is unlikely that the offense would
have been committed, but for the fact that the
offender was under duress, coercion, or
strong provocation.
(3) The offense was primarily the product
of the offender's psychosis or mental
deficiency, though such condition is
insufficient to establish the defense of
insanity.
ee ee ee ee ee ee ae) ee
52a
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.