Petition — BATES v. OHIO (No. 76 6769)

Supreme Court brief1976

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@6-6769

IN THE

MAY io

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

NO. A-739

LEROY BATES, Petitioner

Vv.

STATE OF OHIO, Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT

OF THE STATE OF OHIO

RICHARD M. MOSK

MARILYN EPSTEIN LEVINE

1800 Century Park East

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Los Angeles, California 90067

JACK GREENBERG

JAMES M. NABRIT, III

PEGGY C. DAVIS

JOEL BERGER

DAVID E. KENDALL

10 Columbus Circle, Suite 2030

New York, New York 10019

ANTHONY G. AMSTERDAM

Stanford University Law School

Stanford, California 94305

ATTORNEYS FOR PETITIONER

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IN THE

MAY 19 1977

Pp EILED x

MICHAEL RODAK, JR, CLERK]

SUPREME COURT OF THE UNITED STATES

NO.

OCTOBER TERM, 1976

76-6769

A-739

LEROY BATES, Petitioner

Vv.

.STATE OF OHIO, Respondent

ERRATA SHEET TO PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF OHIO

iv, line 10:

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7, line 23:

9, line ll:

10, footnote

14, line 7:

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28, line 32:

30, line 7:

34, line 32:

omit n. 9

"There was no evidence that either of

the men had said anything which amounted to a demand for money.”

"petitioner's" instead of "defendant's"

add "a" before “jury”

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"Proffitt" instead of "Proffit"

State Supreme Court

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of "n.1"

RICHARD M. MOSK

MARILYN EPSTEIN LEVINE

1800 Century Park East

Los Angeles, California 90067

JACK GREENBERG

JAMES M. NABRIT, III

PEGGY C. DAVIS

DAVID E. KENDALL

100 Columbus Circle, Suite 2030

New York, New York 10019

ANTHONY G. AMSTERDAM

Stanford University Law School

Stanford, California 94305

ATTORNEYS FOR PETITIONER

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Table of Authorities

VII.

INDEX

Page

iii

Opinions Below 1

Jurisdiction 1

Questions oe 2

Constitutional and Statutory

Provisions Involved 3

Statement of Proceedings Below 3

Statement of Facts 5

Reasons for Granting the Writ 10

A. The Imposition of the Death Penalty Upon

One Who Merely Participated in an Attempted

Robbery in Which Someone Was Killed But Who

Did Not Kill Anyone and Who Did Not Authorize

His Accomplice To Carry a Loaded Weapon

Constitutes Cruel and Unusual Punishment in

Violation of the Eighth Amendment to the

United States Constitution and a Denial of

Due Process in Violation of the Fourteenth

Amendment to the United States Constitution. 10

B. The Imposition of the Death Penalty Under

the Ohio Capital Punishment Statute Violates

the Sixth, Eighth and Fourteerth Amendments

to the United States Constitution Because: 13

i. The Ohio Statute Unconstitutionally

Circumscribes Consideration of Mitigating

Factors; 14

2. The Burden of Proof of Mitigating

Factors Is Unconstitutionally Placed

Upon the Defendant; 18

3. The Exclusion of the Jury from

the Sentencing Process Is Unconsti-

tutional; 19

4. The Ohio Death Penalty Statute

Penalizes a Defendant Who Exercises

His Right to a Jury Trial To Determine

His Guilt or Innocence; and 21

$s. The Review of Capital Cases by the

Ohio Supreme Court Is Constitutionally

Inadequate. 22

Cc The Admission of Petitioner's Con-

fession at Trial Requires Reversal of His

Conviction Because: 24

(i)

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VIII.

Re The Confession Was Obtained

after Petitioner Requested and Was

Denied Counsel;

Zz. The Confession Was Obtained

after Petitioner Indicated that He

Desired To Remain Silent.

3. The Circumstances Demonstrate

that Petitioner Did Not Knowingly

and Intelligently Waive His Consti-

tutional Rights to Counsel and To

Remain Silent and that the Confession

Was Not Voluntary; and

4. The Erroneous Admission of the

Confession Was Prejudicial even

though Petitioner's Testimony Reiterated

Much of the Content of His Confession

since there was No Showing that His

Testimony Was Not Impelled by his Extra-

Judicial Confession.

Conclusion

Appendix I -- Opinion of the Supreme Court of the

State of Ohio

Appendix II-- Opinion of the Court of Appeals,

First Appellate District, Hamilton

County, Ohio

Appendix III--Statutory Provisions Involved

(ii)

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TABLE OF AUTHORITIES

Cases

Blackburn v. Alabama,

361 U.S. 199 960

Boykin v. Alabama,

395 U.S. 238 (1969)

Brady v. United States

397 U.S. 742 (1970)

Brewer v. Williams

U.S. , 97 §.Ct. 1232 (1977)

Durham v. United States,

215 F.2d 662 (D.c. Cir. 1954)

Escobido v. Illinois,

378 U.S. 478 964

Furman v. Georgia,

408 U.S. 238 (1572)

Gre v. Georgia,

428 U.S. 153 11576)

In re Winship,

397 U.S. 358 (1970)

Jackson v. Denno,

U.S. 36 69)

Jurek v. Texas,

428 U.S. 262 (1976)

Lego v. Twomey,

a04 U.S. 477 (1972)

McCann v. Richardson,

97 U.S. + 9

Michigan v. esse

Milton v. Wainwright,

407 U.S. 371 (1573)

Miranda v. Arizona,

U.S. 6 )

Mullaney v. Wilbur,

421 U.S. 684 (1975)

Pate v. Robinson,

7 Welle 66)

People v. Leach,

» Cal. , 124 Cal. Rptr. 752, 541 P.2d

296 (1975)

(iii)

a *

29,

ll,

20,

10,

25,

30,

32,

19,

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TABLE OF AUTHORITIES (CONTINUED)

Cases

People v. Superior Court,

I5 Cal. 3d 729, 125 Cal. Rptr. 798, 542 P.2d 1390

(1975)

People v. Washington,

62 Cal. 2d 777, 402 P.2d 130 (1965)

Proffitt v. Florida,

428 U.S. 242 (1976) 10,

Roberts v. Louisiana,

428 U.S. 325 (1976)

Samora v. United States,

406 F.2d 1095, n. 9 (5th Cir. 1969)

Sims v. Georgia,

385 U.S. 538 (1967)

State v. Bates,

48 Ohio st. 2d 315, 358 N.E. 2d 584 (1976)

State v. Bayless,

48 Ohio st. 2d 73, 357 N.E. 2d 1035 (1976)

State v. Bell,

48 Ohio Sst. 2d 270, 358 N.E. 2d 556 (1976)

State v. Black,

48 Ohio st. 2d 262, 358 N.E. 2d 551 (1976)

State v. Cliff,

I9 Ohio St. 2d 31, 249 N.E. 2d 823 (1969)

State v. Edwards,

48 Ohio st. 2d 31, 358 N.E. 2d 1051 (1976)

State v. Hall,

48 Ohio St. 2d 325, 358 N.E. 2d 590 (1976)

State v. Hancock,

48 Ohio St. 2d 147, 358 N.E. 2d 273 (1976)

State v. Harris,

48 Ohio St. 2d 351, 359 N.E. 2d 67 (1976)

State v. Lane,

49 Ohic st. 2d 77, 358 N.E. 2d 1081 (1976)

State v. James Lockett,

49 Ohio st. 2d 71, 359 N.E. 2d 1077 (1976)

State v. Sandra Lockett,

49 Ohio St. 2d 48, 358 N.E. 2d 1062 (1976)

State v. Lytle,

48 Ohio st. od 391, 358 N.E. 2d 623 (1976)

(iv)

15, 19, 20,

10, 15,

18,

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Do 2& ak & HE S

TABLE OF AUTHORITIES (CONTINUED)

Cases

State v. Miller,

Ohio St. 198, N.E. 2d (1977)

State v. Nichols,

Ohio App. 82, 209 N.E. 2d 750 (1965)

State v. Osborne,

Ohio St. 35, 359 N.E. 2d 78 (1976)

State v. Roberts,

48 Ohio st. 2d 211, 358 N.E. 2d 530 (1976)

State v. Per ’

49 Ohio st. a4 14, 358 N.E. 2d 1040 (1976)

State v. Royster,

48 Ohio st. 24a 351, 358 N.E. 2d 616 (1976)

State v. Staten,

Ohio St. 14, 247 N.E. 2d 293 (1969)

State v. Strodes,

o St. 13, 357 N.E. 2d 375 (1976)

State v. Woods,

Ohio St. 127, 359 N.E. 2d 1059 (1976)

Trop v. Dulles,

356 U.S. 86 (1958)

United States v. Brawner,

F. MeGe = Om 1972)

United States v. Clayton,

407 F. Supp. 204 (Eb. Wis. 1976)

United States v. Cookston,

- Supp. W.D. Tex 1974)

United States v. Goss,

484 F.2d 434 (éth cir. 1973)

United States v. Jackson,

United States v. Kinsman,

° Cir. 1976)

United States v. Kramer,

° ir. 1961)

United States v. Maddox,

- Supp. -D. Okla. 1976)

(v)

Page

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TABLE OF AUTHORITIES (CONTINUED)

Cases

United States v. Massey,

550 F.2d 300 (5th Cir. 1977)

United States v. Phaester,

544 F.2d 353 (9th Cir. 1976)

United States v. Priest,

409 F.2d 491 (5th cir. 1969)

United States v. Riggs,

537 F.2d 1219 (4th Cir. 1976)

United States v. Silva,

. Cir. 1969)

United States v. Womack,

542 F.2d 1047 (9th Cir. 1976)

Vachon v. New H shire,

414 U.S. 478 (1974)

Witherspoon v. Illinois,

391, U.S. 510 (1968)

Westbrook v. Arizona,

384 U.S. 150 966

Woodson v. North Carolina,

428 U.S.

30,

32,

10, 15,

19,

Statutes, Rules and Regulations

28 U.S.C. § 1257 (3)

Ohio Revised Code § 2903.03

Ohio Revised Code § 2905.01

Ohio Revised Code § 2907.02

Ohio Revised Code § 2911.01

Ohio Revised Code § 2929.02

Ohio Revised Code § 2929.03

Ohio Revised Code § 2929.04

Ohio Revised Code § 2929.11

(vi)

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TABLE OF AUTHORITIES (CONTINUED)

Other Authorites Page

Sayre, “Criminal Responsibility for the Acts of

Another", 43 Harv.L.Rev. 689 (1930) ll

Pages' Ohio Rev. Code Annotated § 2903.01,

Committee Comment 13

(vii)

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

NO. A-739

LEROY BATES, Petitioner

Vv.

STATE OF OHIO, Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT

OF THE STATE OF OHIO

Petitioner, LEROY BATES, respectfully prays that a writ

of certiorari issue to review the judgment and decision of the

Supreme Court of the State of Ohio in this. proceeding dated

December 23, 1976.

I. OPINIONS BELOW

The opinions of the Supreme Court of the State of Ohio,

reported as State v. Bates at 48 Ohio St. 2d 315, 358 N.E. 2d 584

(1976), and the Court of Appeals, First Appellate District,

Hamilton County, Ohio, are attached hereto as Appendices I and II,

respectively.

II. JURISDICTION

The jurisdiction of this court is invoked pursuant to

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

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III. QUESTIONS PRESENTED

A. Does the imposition of the death penalty upon one

who merely participated in an attempted robbery in which someone

was killed but who did not kill anyone and who did not authorize

his accomplice to carry a loaded weapon constitute cruel and

unusual punishment in violation of the Eighth Amendment to the

United States Constitution and a denial of due process in violation

of the Fourteenth Amendment to the United States Constitution?

B. Does the imposition of the death penalty under the

Ohio capital punishment statute violate the Sixth, Eighth and

Fourteenth Amendments to the United States Constitution because:

1. The Ohio statute circumscribes consideration

of mitigating factors;

2. The burden of proof of mitigating factors is

Placed upon the defendant;

3. The jury is excluded from the sentencing

process;

4. The Ohio death penalty statute penalizes a

defendant who exercises his right to a jury trial to determine

his guilt or innocence; and |

5. The review of capital cases by the Ohio

Supreme Court is inadequate?

C. Does admission of petitioner's confession at trial

require reversal of his conviction because:

1. The confession was obtained after petitioner

requested and was denied counsel;

2. The confession was obtained after petitioner

indicated that he desired to remain silent;

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3. The circumstances demonstrate that petitioner

did not knowingly and intelligently waive his constitutional .

rights to counsel and to remain silent and that the con-

fession was not voluntary; and

4. The erroneous admission of the confession

was prejudicial even though petitioner's testimony reiterated

much of the content of his confession since there was no showing

that his testimony was not impelled by his extra-judicial confes-

sion?

IV. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

l. This case involves the Fifth, Sixth, Eighth and

Fourteenth Amendments to the United States Constitution.

3. This case also involves the following sections of

the Ohio Revised Code (hereinafter "R.C."), all of which sections

are set forth in full in Appendix III hereto: §§ 2903.01, 2911.01,

2929 .02-2929.04.

V. STATEMENT OF PROCEEDINGS BELOW

On January 24, 1975, the Hamilton County, Ohio, Grand

Jury returned a two-count indictment charging defendant-petitioner

Leroy Bates (referred to herein as "petitioner" or "Bates") and

Ellis Shelton with causing the death of Lloyd Adkins while attempt-

ing to commit aggravated robbery and with attempted aggravated |

robbery. Bates entered a plea of not guilty.

In March, 1975, the trial court, after a hearing, denied

petitioner Bates' motion to suppress a confession. (Transcript of

Motion to Suppress Hearing [hereafter referred to as "T™"] 198).

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Bates and Ellis Shelton were tried in separate trials.

Following a trial in the Court of Common Pleas of Hamilton County

Ohio (Transcript of Proceedings [hereinafter referred to as

"TP"]), the jury found Bates guilty of both counts. After a

“mitigating hearing" before the trial judge without a jury, the

trial judge found that Bates had failed to sustain his burden to

show by a preponderance of the evidence the existence of one of

the statutory mitigating circumstances. Accordingly, on June 30,

1975, the court sentenced Bates to death by electric chair on one

count and to confinement for a period of seven to twenty-five

years on the other count. (Transcript of Mitigating Hearing and

Sentencing [hereafter referred to as "Ts*} 33.)

Bates' conviction and sentence were affirmed by the

Court of Appeals, First Appellate District, Hamilton County,

Ohio, and by the Ohio Supreme Court. (State v. Bates, 48 Ohio st.

315, 358 N.E. 2d 584 (1976). )2/ Bates is presently in custody.

i/___In this case, the Ohio appeliate courts considered the admis-

sibility of Bates' confession and the sufficiency of the evidence

to sustain the death penalty, but did not expressly consider the

constitutionality of the Ohio capital punishment statute. on

November 24, 1976, however, the Ohio Supreme Court had upheld the

constitutionality of its capital punishment statute. State v.

Bayless, 48 Ohio St.2d 73, 357 N.E.2d 1035 (1976). The court

stated in that case that in reviewing any death penalties, it has

the responsibility to assure that they “are not imposed arbitrari-

ly and capriciously" and that any such sentence is "fairly

imposed by Ohio's trial judge." State v. Bayless, supra, 357

N.E. 2d at 1045. Accordingly, in the instant case, it must be

assumed that the Ohio court approved the constitutionality of the

death penalty statute. See Boykin v. Alabama, 395 U.S. 238, 241

(1969).

Moreover, this Court will consider issues involving "plain

error" even though not specifically raised before the Court or

in the state courts. Vachon v. New Hampshire, 414 U.S. 478, 479

n. 3 (1974).

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The Ohio Supreme Court has stayed the execution of sentence until

a final determination by the United States Supreme Court. The

Supreme Court extended the time to file a petition for writ of

certiorari until May 22, 1977.

VI. STATEMENT OF FACTS

This case involves the imposition of the death penalty

upon a mentally retarded young man who did not kill anyone. At

the time of the crime, defendant was 18 years old, with minimal

education, under the influence of drugs and alcohol, and only

reluctantly involved at the insistence of an older man (the one

who, according to the prosecution, actually committed the killing).

The supreme penalty is being assessed under a statute which

petitioner claims contains a number of defects of constitutional

magnitude, and by virtue of the vicarious liability and felony-

murder doctrines.

On November 25, 1974, Leroy Bates, then 18 years old,

was staying with his sister and had been consuming alcohol and

drugs. Also present was a 39-year old man, Ellis Shelton, who

suggested engaging in a robbery and who asked Bates to obtain a

gun. (TP 280-285.)

Bates called Kenneth Carter and arranged to obtain a

shotgun for $20. While Bates was sleeping, Shelton obtained the

weapon from Carter (TP 7, 16-18, 285-287.) Shelton urged Bates

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to accompany him on a robbery, assuring him that the shotgun

would not be loaded. After at first refusing to engage in the

robbery, Bates finally acceded to Shelton's requests. (TP 287-

290, 292.)

At approximately 12:20 A.M., Tuesday morning,

November 26, 1974, two men entered the Warner Tavern, located at

303 Warner Street, City of Cincinnati, Hamilton County, Ohio.

There were three people already in the cafe: the owner, Lois

Wells, who was standing behind the bar; Robert Schultheis, a

patron and friend of Mrs. Wells, who was seated at the open end

of the bar reading a newspaper; and Lloyd Adkins, an off-duty

Pinkerton guard who was seated on the second stool from the end

of the bar and nearest to the entrance to the tavern from Warner

Street.

The two men who entered the tavern wore stocking masks.

The taller of the two was carrying a sawed-off Single barrel,

single shot, Springfield 12-gauge shotgun. The shorter man,

later purportedly identified by Lois Wells as Bates, 2/ went to

the end of the bar where Mr. Schultheis was seated and became

involved in an altercation with him. At the same time, Lloyd

Adkins stood, said, "Oh no, you don't," and grabbed the shotgun

in the hands of the taller man. Adkins and the taller man

struggled over possession of the gun, which struggle resulted in a

Single shot being fired that struck Adkins in the chest and

killed him. Both masked men fled the tavern, having obtained no

2/ The two men wore masks. (TP 43.) Mrs. Wells was near-

Sighted (TP 59.), and prior to trial she was shown a picture of

Bates. Also, prior to trial she said she could only identify the

build of the suspect. (TP 58.)

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property or thing of value. (TP 32-37, 42-52, 63-82, 290-292.)

There was no evidence that either of the men had said anything.

On November 27, 1974 and November 30, 1974, various

portions of the shotgun which allegedly caused the death of the

victim were found. (TP 98-99, 135.)

According to Mr. Carter, Bates called him and asked him

to come and get the shotgun; Bates also told him that Ellis

Shelton had shot a man with it during a robbery in which they

were involved. (TP 19-21.)

On December 12, 1974, in the afternoon, the police

arrested Bates at his sister's house and took him to the police

station. They purportedly read him his constitutional rights (TP

170), questioned him, interrupting him frequently, and obtained a

recorded confession, which was later played for the jury at trial.

(TP 177-80.)

At a pre-trial hearing on a motion to suppress the

confession, Bates and his brother testified that at the time of

Bates' arrest and interrogation, Bates was under the influence of

drugs and alcohol. There was evidence of defendant's mental

retardation. (TM Bates 5-8, 13-15, 18, 20, 23-24, 26-29, 33-35,

40; Frank Bates 17-18, 26-32; Dr. Hottenstein 4-13 and Dr. Haskell

19-35.)

Bates also testified that prior to his confession he

requested an attorney, which request was denied, and that despite

his requests for an attorney and to remain Silent, the interroga-

tion continued. (TM Bates 13, 14, 20, 27-28.)

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Bates testified that he was promised a lesser charge for

his cooperation. (TM Bates 18-25.) Bates asserted that he

believed trickery was being used by the officers. (TM Frank

Bates 15.) His brother, Frank Bates, corroborated his testimony

since he, Frank Bates, overheard much of the interrogation. (IT™

Frank Bates 11-16.)

The interrogating police officers testified that they

did not believe Bates was under the influence of drugs or alcohol

during the interrogation, although there was no evidence contra-

dicting evidence of petitioner's mental retardation. The

officers denied promising Bates a lesser charge in return for a

confession, but conceded that they had discussed with him lesser

charges, including manslaughter. One of the officers also

admitted, in effect, that Bates was lead to believe he would not

be charged with first degree murder. The officers did not rebut

the charge that Bates was denied an attorney before his con-

fession, despite his request for one, and that the interrogation

did not cease after he stated he wished to remain silent. (T™™

Drescher 129-162 and Burgess 163-189.) One officer candidly

admitted that at the time of the confession Bates “was in a right

mental state at that time for a recorded statement to be taken."

(T™ Drescher 152-153.) The interrogation prior to the statement

lasted three and one-half hours (TP 182.)

The trial court denied the motion by Bates to suppress

the confession. The court did not discuss the fact that Bates'

requests for counsel and to remain silent had beer ignored, but

merely concluded that the confession was voluntary and that Bates

had been advised of his rights. There was ro finding as to a

waiver of constitutional rights. (T™ 197-198.) The issue as to

the admissibility o. the confession was never presented to the

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jury. Aithough petitioner's testimony at trial included much of

the material in the confession, there was no evidence that the

testimony was not induced by the fact that a recorded confession

had already been admitted into evidence.

After the trial, the jury found Bates guilty of aggra-

vated murder while attempting to commit aggravated robbery and of

attempted aggravated robbery.

After conviction, a so-called mitigation hearing was

held before the judge sitting without jury. At that hearing,

there was uncontradicted evidence that Bates was a mentally

retarded, emotionally unstable 18-year old, that he was under the

influence of drugs and alcohol at the time of the crime, and that

he was talked into engaging in the robbery by a 39-year old man

who assured him that there would be no loaded weapon. The evidence

disclosed that the gun was held by the older man and discharged

when the victim grabbed it. The prosecution did not contradict

the evidence that the victim was not shot by Bates. (TS 2-19.)

Despite this evidence, the judge found that petitioner

had not sustained his burden to show one of the three available

mitigating circumstances, which are inducement by the victim;

duress, coercion or strong provacation; and that the offense was

the product of psychosis or mental deficiency not amounting to

legal insanity. (TS 31-32.)

Accordingly, the court was required by law to and did

impose the death penalty. (TS 33.)

Bates appealed, setting forth a number of alleged errors

that took place at trial. The conviction and death sentence were

seers

I LT, 9

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affirmed by an Ohio intermediate appellate court and the State

Supreme Court.

VII. REASONS FOX GRANTING THE WRIT

A. THE IMPOSITION OF THE DEATH PENALTY UPON ONE WHO

MERELY PARTICIPATED IN AN ATTEMPTED ROBBERY IN WHICH SOMEONE WAS

KILLED BUT WHO DID NOT KILL ANYONE AND WHO DID NOT AUTHORIZE HIS

ACCOMPLICE TO CARRY A LOADED WEAPON CONSTITUTES CRUEL AND UNUSUAL

PUNISHMENT IN VIOLATION OF THE EIGHTH AMENDMENT TO THE UNITED

STATES CONSTITUTION AND A DENIAL OF DUE PROCESS IN VIOLATION OF

THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

This Court, in holding the death penalty constitutional,

has done so only ". . .for the crime of murder, and when life

has been taken deliberately by the offender. . ." Gregg v. Georgia,

428 U.S. 153 (1976). The Court has reserved the question of the

constitutionality of the imposition of the death sentence upon a

person who has not killed, but whose accomplice in an otherwise

non-capital offense has killed someone. Woodson v. North Carolina,

428 U.S. 280, 305 n. 40, (1976).2/

The instant case squarely presents this issue left unre-

sOlved by the Court, for Bates did not kill the victim. The

ultimate sentence is being imposed upon Bates, not because he

intended to kill or did kill, but solely because of another

3/ "Our determination that the death sentences in this case were

imposed under procedures that violated constitutional standards

makes it unnecssary to reach the question whether imposition of the

death penalty on petitioner Woodson would have been so dispropor-

tionate in comparison with the nature of his involvement in the

capital offense as independently to violate the Eighth and Fourteen

Amendments." Woodson was convicted of first degree murder, althoug

apparently his accomplice did the killing. References to Gregg,

Woodson and to Proffit v. Florida, 428 U.S. 242 (1976), Jurek v.

Texas, 428 U.S. 262 (1976) and Roberts v. Louisiana, 428 0.5. 325

(1976) shall be to the plurality opinions therein.

person's intent and acts. The facts of the instant case are

particularly compelling because it is uncontradicted that Bates

aad the assurance of his accomplice that the latter's gun was

unloaded. (T.P. 287-289, 292.)

This Court has declared that an essential issue with

respect to the constitutionality of the death penalty is "whether

the punishment of death is disproportionate in relation to the

crime for which it is imposed." Gregg v. Georgia, supra, 428

U.S. at 187.

In the instant case the death penalty is being assessed

upon a person who merely engaged in what he thought was a robbery

without a loaded weapon. 4/

Two legal principles were applied in order to attribute

to Bates the requisite intent and acts for first degree murder.

First, he was held accountable for the unauthorized acts of his

alleged accomplice. The application of the doctrine of vicarious

liability in this context has long been criticized as contrary to

fundamental doctrines of criminal law. See Sayre, "Criminal

Responsibility for the Acts of Another", 43 Harv. L. Rev. 689,

717 (1930). .

Second, the requisite intent and the act of killing

were attributed to Bates by virtue of the felony-murder doctrine,

which doctrine has been criticized because it "erodes the rela-

tion between criminal liability and moral culpability."

4/ Ohio does not impose the death penalty for rape, kidnapping

or armed robbery. R.C. §§ 2907.02; 2905.01, 2911.01, 2929.11.

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People v. Washington, 62 Cal. 2d 777, 783, 402 P.2d 130, 134

(1965) (Traynor, J.).

In addition, to inflict the death penalty, not on the

basis of the acts and intentions of the defendant, but rather on

the fortuitous circumstances of his accomplice's actions leads to

results just as arbitrary as those condemned in Furman v.

Georgia, 408 U.S. 238 (1972).

Accordingly, the Court should grant certiorari to

resolve the question it left open in Gregg and Woodson as to

whether the death penalty can be imposed constitutionally upon

one who does not kill during a robbery.

Moreover, the Court should determine whether the death

penalty can be imposed constitutionally upon one who did not kill

during a robbery, who was not armed, and who received assurances

ftea hi accomplice that the accomplice was not armed with a

1 Jed . sapon.

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B. THE IMPOSITION OF THE DEATH PENALTY UNDER THE OHIO

CAPITAL PUNISHMENT STATUTE VIOLATES THE SIXTH, EIGHTH, AND FOUR-

TEENTH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES

BECAUSE:

1. THE OHIO STATUTE UNCONSTITUTIONALLY CIRCUMSCRIBES

CONSIDERATION OF MITIGATING FACTORS;

2. THE BURDEN OF PROOF OF MITIGATING FACTORS IS

UNCONSTITUTIONALLY PLACED UPON THE DEFENDANT;

3. THE EXCLUSION OF THE JURY FROM THE SENTENCING

PROCESS IS UNCONSTITUTIONAL;

4. THE OHIO DEATH PENALTY STATUTE PENALIZES A

DEFENDANT WHO EXERCISES HIS RIGHT TO A JURY TRIAL TO DETERMINE

HIS GUILT OR INNOCENCE; AND

5. THE REVIEW OF CAPITAL CASES BY THE OHIO SUPREME

COURT IS CONSTITUTIONALLY INADEQUATE.

In Ohio, the death penalty is mandatory after con-

viction of a capital offense>’ unless, at a special post-trial,

non-jury hearing, the defendant can establish by a preponderance

of the evidence one of three mitigating circumstances -- induce-

ment by the victim; duress, coercion or strong provocation; or

psychosis or mental deficiency not amounting to legal insanity.

R.C. §2929.04 (B).

S/ An offense is a capital offense if the prosecution proves

two elements: (1) “aggravated murder," which is the equivalent

of "premeditated" or first degree murder (Page's Ohio Rev. Code

Annot. §2903.01, Committee Comment); and ) one of seven aggra-

vating circumstances, including assassination of certain public

officials, murder for hire, murder to escape accountability for

another crime, murder by a prisoner, repeat murder or murder of

more than one, killing a law enforcement officer and felony

murder. R.C. §2929.04.

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The defendant charged with a capital offense may waive

his right to a jury trial, in which case a three-judge court makes

both the guilt and sentencing determinations. R.C. §2929.03(C).

The defendant sentenced to death has the right to

review in the intermediate appellate court and, if the sentence

is affirmed, in the state supreme court. The statute does not

define the scope of review.

Each of the provisions of the Ohio ‘law raises serious

constitutional questions. It is important for this court to

resolve these issues, not only because the life of Mr. Bates is

at stake, but to provide further guidance to various jurisdic-

tions that have enacted or are enacting death penalty laws.

l. The Ohio Statute Unconstitutionally

Circumscribes Consideration of

Mitigating Factors.

Under the Ohio capital punishment statute, the death

penalty is mandatory for a defendant convicted of a capital

offense unless he can establish one of three mitigating circum-

stances, which circumstances are so narrowly defined and applied

as to be, in effect, virtually inapplicable. Accordingly, the Ohio

statute omits factors which are constitutionally required to be

considered in connection with the imposition of the death sentence.

This Court has held that the Eighth Amendment "requires

consideration of the character and record of the individual

offender and of the circumstances of the particular offense as a

constitutionally indispensible part of the process of inflicting

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the penalty of death." Woodson v. North Carolina, supra, 428

U.S. at 304. The three death penalty statutes which this Court

has found constitutional permit the sentencing authority to

consider a wide or unlimited range of mitigating factors. See

Gregg v. Georgia, supra, 428 U.S. at 164 (Georgia statute permits

consideration of "'any mitigating circumstances. . . otherwise

authorized by law'"); Proffitt v. Florida, 428 U.S. 242, 252

(1976) (seven statutory mitigating circumstances, including the

role of the defendant in the crime, his age and his mental con-

dition; ". . .[t]he sentencing judge must focus on the indivi-

dual circumstances of each homicide and each defendant."); Jurek v.

Texas, 428 U.S. 262, 273 (1976) (". . . the jury may be asked to

consider whatever evidence of mitigating circumstances the

defense can bring before it.").

In marked contrast, the Ohio capital punishment statute

permits consideration of only three very narrow mitigating circum-

stances, omitting entirely factors of great importance. For

example, one of the "circumstances of the particular offense"

which is a "constitutionally indispensible part of the process of

inflicting the penalty of death" (Woodson v. North Carolina,

Supra, 428 U.S. at 304) is the extent of the defendant's parti-

cipation in the crime (a factor particularly relevant to the

instant case).

Despite the mandate of this Court that a capital

sentencing procedure must "focus on the circumstances of the

particular offense and the character and propensities of the

offender," Roberts v. Louisiana, 428 U.S. 325, 333 (1976), under

Ohio law, Bates may be put to death with no such focus on his

role in the crime of which he was convicted or of his particular

character and propensities.

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The facts that Bates did not kill anyone and believed

his alleged accomplice's weapon was unloaded must be considered

in connection with mitigation. Yet, by virtue of the Ohio

statute, those compelling factors were irrelevant. Likewise,

since the court found that Bates had not sustained his burden to

establish the three mitigating factors, his age and mental con-

dition were apparently also irrelevant.

The three mitigating circumstances are so narrow as to

be illusory, thus in effect rendering the death penalty virtually

mandatory.

The first such mitigating factor is that the victim of

the offense induced or facilitated it. R.c. §2929.04(B)(l1). While

no reported case discusses this factor, it appears on its face to

be limited to mercy-killing and will thus seldom if ever be rele-

vant in a capital case .2/

The second mitigating factor is that "it is unlikely

that the offense: would have been committed but for the fact that

the offender was under duress, coercion or strong provocation."

R.C. §2929.04(B)(2). Under many circumstances, these factors

may be exculpatory. Duress or coercion is often a defense to a

crime, and strong provocation leads to the reduction of the degree

of homicide. E.g., R.C. §2903.03. The application of these

harrow principles at a mitigation hearing after a conviction for

first degree murder is necessarily limited.

6/ In the instant case, the trial judge considered irrelevant

the fact that the victim grabbed for the weapon, resulting in

its discharge and his death. (TS 24, 31.)

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The third mitigating factor is that 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." R.C. §2929.04(B)(3).

If the offense was the product of the offender's

psychosis or mental deficiency, though such condition is insuffi-

cient to establish the defense of insanity, then by virtue of the

diminished capacity doctrine, the offender most likely lacked the

capacity to deliberate or premediate or have the requisite intent

for aggravated murder. Instead he would be guilty of second

degree murder or manslaughter. See State v. Nichols, 3 Ohio App.

2d 182, 209 N.E. 2d 750, 755 (1965).

Moreover, if the offense "was primarily the product of

the offender's psychosis or mental deficiency," then the defendant

should have a defense to the crime, for such a test is basically

indistinguishable in purpose and effect from the American Law

Institute test for the defense of insanity, which is utilized in

Ohio.

Since psychosis or mental deficiency will normally

constitute a defense to the crime (either an absolute defense or

to reduce the degree), a defendant's mental state will rarely be

applied as a mitigating factor under the Ohio test.

4 State v. Staten, 18 Ohio St. 2d 14, 247 N.E. 2d 293, 299

1969). The "product" test, established as the insanity defense

in Durham v. United States, 214 F.2d 862 (D.C. Cir. 1954), was

abondoned in United States v. Brawner, 471 F.2d 969 (D.C. Cir.

1972) in favor of what is essentia y the American Law Institute

test, not because the tests are substantively different or lead

to different results, but because the court believed the ALI test

provided for a preferable evidentiary presentation. The court

indicated that the Durham rule and the ALI test have the same

basic objectives and same basic results. 471 F.2d at 989.

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The Ohio Supreme Court has compounded the confusion

with regard to this mitigating factor by refusing to define

"psychosis or mental deficiency," on the ground that "to define

such terms is to narrow them." State v. Black, 48 Ohio St. 2d

262, 268, 358 N.E. 2d 551, 556 (1976). Thus, the court has made

this mitigating factor impossible to apply rationally or even-

handedly.

In sum, the Ohio statute on its face unconstitutionally

limits the sentencing authority's consideration of mitigating

factors which are "a constitutionally indispensible part of the

process of inflicting the penalty of death." Woodson v. North

Carolina, supra, 428 U.S. at 304. The statute provides a virtual

mandatory death penalty on its face and as applied, in violation

of the Eighth Amendment. Cf. Roberts v. Louisiana, supra, 428

U.S. 325.

2. The Burden of Proof of Mitigating

Factors is Unconstitutionally Placed ,

Upon the Defendant.

The Ohio capital punishment statute requires the defen-

dant to establish by a preponderance of the evidence one or more

of the mitigating factors. R.c. §§2929.03(E), 2929.04(B). By so

doing, this scheme deprives defendants of their life without due

process of law.

Due process requires the prosecution in a criminal case

to prove beyond a reasonable doubt every essential element of

guilt. In re Winship, 397 U.s. 358, 364 (1970): While mitigation

is technically relevant not to "guilt" but only to punishment,

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that technicality cannot justify eliminating a procedural safe-

guard as basic as the burden of proof in a criminal case. In

fact, mitigation is undeniably relevant to the question of whether

the defendant is guilty of capital murder, the crime for which he

will be punished.

Even assuming that mitigation is relevant only to

punishment, the Ohio statute is nevertheless constitutionally

defective. In Mullaney v. Wilbur, 421 U.s. 684 (1975), this

Court invalidated a Maine procedure which placed upon the defen-

dant the burden of proving by a preponderance of evidence the

existence of provocation to reduce a murder offense to man-

Slaughter. Although under Maine law, provocation was not labelled

as an element of the crime of murder, a finding of provocation

resulted in a substantial reduction in penalty. The Court held

that the drastic effect upon extent of punishment prohibited

placing the burden of proof as to provocation upon the defendant.

In view of Mullaney and the fact that this Court has

recognized the qualitative difference between a death sentence

and any sentence of imprisonment (Woodson v. North Carolina,

Supra, 428 U.S. at 303-4), Ohio's allocation of the burden of

proof with respect to the determination of the facts supporting

mitigation violates Bates' constitutional rights.

3. The Exclusion of the Jury From the

Sentencing Process is Unconstitutional.

The Ohio statutory scheme does not permit any jury

participation in the sentencing process. Although this Court

"has never suggested that jury sentencing is constitutionally

required" (Proffitt v. Florida, Supra, 428 U.S. at 252), it has

o @OoOnrank er awn

neither considered nor approved any death penalty statute which

totaliy excludes the jury from factual resolutions which deter-

mine the ultimate sanction. The Florida law upheld by this Court

in Proffitt provides an advisory jury for sentencing; the advisory

jury sentence may be mitigated by the judge and can be increased

only where a life sentence would Clearly be unreasonable; and

the sentencing judge must make findings, thus permitting meaning-

ful appellate review. The Ohio statute does not include any of

these safeguards.

The Eighth Amendment requires that the death penalty be

imposed only under circumstances which assure that it is in

conformity with "the evolving standards of decency that mark the

progress of a maturing society." Trop v. Dulles, 356 U.S. 86,

101 (1968). This Court has recognized that the "two crucial

indicators of evolving standards of decency respecting the

imposition of punishment in our society" are "jury determinations

and legislative enactments." Woodson v. North Carolina, supra,

428 U.S. at 293 (emphasis added) .2-/ This Court has also noted

with respect to the death penalty that the jury “is a signi-

ficant and reliable objective index of contemporary values

because it is so directly involved." Gregg v. Georgia, supra,

428 U.S. at 181. The Ohio Legislature, however, has totally

excluded the jury from the capital sentencing process, rendering

the death sentences imposed in Ohio cruel and unusual punishment.

The elimination of the jury in connection with fact-

finding also deprives a defendant of his constitutional right to

vy This Court has also observed that "one of the most important

unctions any jury can perform. . .is to maintain a link between

contemporary community values and the penal system" necessary to

assure that conformity with standards of decency. Witherspoon

v. Illinois, 391 U.S. 510, 520 n. 15 (1968).

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a jury trial. Although mitigating factors are technically rele-

vant not to guilt but to punishment, Mullaney v. wilbur, supra,

421 U.S. 684, stands for the proposition that where the deter-

mination of certain facts is of significance, the state may not

eliminate procedural safeguards in connection with their proof by

simply “characterizing them as factors that bear solely on the

extent of punishment." Id. at 698; accord United States v.

Kramer, 289 F.2d 909, 921 (2d Cir. 1961). Here, the factual

determination is literally a matter of life and death. The total

preclusion of the jury from that dete mination violates a defen-

dant's constitutional right to a jury trial.

Accordingly the Ohio statute raises serious Sixth and

Eighth Amendment problems which require resolution by this Court.

4. The Ohio Death Penalty Statute Penalizes

a Defendant Who Exercises His Right To

A Jury Trial To Determine His Guilt or

Innocence.

The Ohio capital punishment statute in effect restricts

a defendant's right to a jury trial even on the question of guilt.

If a defendant waives a jury trial in favor of trial by a three-

judge panel, he is sentenced, not by one judge, but by the same

three-judge panel; in that case, he need only convince one judge

out of the three of the existence of a mitigating circumstance,

(R.C. §2929.03(C), (E)) and his chances of avoiding a death sen-

tence are thereby increased.

A statutory scheme which dilutes the right to trial by

jury cannot constitutionally be tolerated. This Court has held

| that a statute which allows the death penalty in kidnapping cases

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where trial is by jury but not where trial is by the court violates

a defendant's constitutional right to a jury trial. United

States v. Jackson, 390 U.S. 570, 583 (1968). The Ohio statute is

likewise unconstitutional on its face because it inhibits and

threatens a defendant's Sixth Amendment right to a jury trial.

Moreover, in this case, Bates did not obtain the benefit

of a three-judge sentencing court - an advantage accorded those

who waive their jury trial. Accordingly, not only was his right

to a jury trial conditioned upon his giving up certain protections,

but he was denied the equal protection of the laws.

5. The Review of Capital Cases By The Ohio

Supreme Court is Constitutionally Inadequate.

Plenary review of death sentences by a court of state-

wide jurisdiction is an important procedural safeguard against

arbitrary and capricious imposition of the death penalty, because

it helps to assure that the sentence is not only in conformity

with the facts of the case, but is also in conformity with senten-

ces imposed in other similar cases. Gregg v. Georgia, supra, 428

U.S. at 211-212 (concurring opinion).

The Ohio statute gives no guidance to the courts as to

the review of capital cases. The record of the Ohio Supreme

Court indicates that it has not accorded to Capital cases the

scrupulous review required by the Eighth Amendment.

The Ohio Supreme Court's decision in the instant case

is illustrative of its method of review. Bates raised serious

question with respect to proof of mitigating factors. His claim

was dismissed by the court with the brief statement that "in the

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face of the record, this ruling of the trial court and its affir-

mance by the Court of Appeals is totally justified." State v.

Bates, 48 Ohio St. 2d 315, 358 N.E. 2d 584, 590 (1976).

Moreover, the Ohio Supreme Court has explicitly stated

that in capital cases "this court will not retry issues of fact

relating to mitigation. In the circumstances at hand, we confine

our consideration to a determination of whether there is sufficient

substantial evidence to support the verdict rendered." State v.

Edwards, 48 Ohio St. 2d 31, 47, 358 N.E. 2d 1051 (1976). The "sub-

stantial evidence" test in Ohio is very narrow: the sentence will

be sustained under the test unless no reasonable mind could reach

the same conclusion. State v. Cliff, 19 Ohio St. 2d 31, 249 N.E.

2d 823 (1969). Such a narrow scope of review is patently insuffi-

cient in a capital case, particularly since, under the Ohio statu-

tory scheme, the burden of proving mitigation is on the defendant.

As of March 31, 1977, the Ohio Supreme Court had

reviewed twenty capital cases under the current law. It affirmed

nineteen of the twenty, 2/ setting aside one for evidentiary error

unrelated to the sentence .22/ This record is in marked contrast

9/ In order of decision, the es are State v. Bayless, 48 Ohio

St. 2d 73, 357 N.E. 2d 1035 (1976) state v. Stisdes, 48 ohio St.

2d 113, 357 N.E. 2d 375 (1976); State v. Woods, Ohio St. 2d >

127, 357 N.E. 2d 1059 (1976) (two cases); State v. Hancock, 48

Ohio St. 2d 147, 358 N.E. 2d 273 (1976); State v. Roberts, 48

Ohio St. 2d 211, 358 N.E. 2d 530 (1976); State v. Black,

48 Ohio St. 2d 262, 358 N.E. 2d 551 (1976); State v. Bell, 48

Ohio St. 2d 270, 358 N.E. 2d 556 (1976); State v. Bates, 48 Ohio

St. 2d 315, 358 N.E. 2d 504 (1976); State v. Hall, 48 Ohio st. 24

325, 358 N.E. 2d 590 (1976); State v. Harris, 48 Ohio St. 2d 351,

359 N.E. 2d 67 (1976); State v. Ro ster, 48 Ohio St. 2d 351, 358

N.E. 2d 616 (1976); State v. Lytle, 48 Ohio st. 2d 391, 358 N.E. 2d

623 (1976); State v. Per an, 49 Ohio St. 2d 14, 358 N.E. 2d 1040

(1976); State v. Edwards, 49 Ohio st. 2d 31, 358 N.E. 2d 1051

(1976); State v. Sandra Lockett, 49 Ohio St. 2d 48, 358 N.E. 2d

1062 (1976); State v. Lane, 49 Ohio St. 2d 77, 358 N.E. 2d 1081

(1976); State v. Osborne, 49 Ohio St. 2d 135, 359 N.E. 24 78 (1976)}

State v. Miller, 49 Ohio st. 2d 198, —_._-‘N-E. 2d Ss (1977).

10 ate Vv. James Lockett, 49 Ohio St. 2d 71, 358 N.E. 2d 1077

976).

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to the record of the Florida Supreme Court, which had set aside

the death sentences in eight out of twenty-one cases as of the

time of this Court's decision in Proffitt v. Florida, supra, 428

U.S. at 253. Ohio's unstructured and insufficient appellate

review thus raises serious questions as to the constitutionality

of the statute.

Cc. THE ADMISSION OF PETITIONER'S CONFESSION AT

TRIAL REQUIRES REVERSAL OF HIS CONVICTION

BECAUSE:

1. THE CONFESSION WAS OBTAINED

AFTER PETITIONER REQUESTED AND WAS DENIED

COUNSEL;

2. THE CONFESSION WAS OBTAINED

AFTER PETITIONER INDICATED THAT HE

DESIRED TO REMAIN SILENT;

3. THE CIRCUMSTANCES DEMONSTRATE

THAT DEFENDANT DID NOT KNOWINGLY AND

INTELLIGENTLY WAIVE HIS CONSTITUTIONAL

RIGHTS TO COUNSEL AND TO REMAIN SILENT

AND THAT THE CONFESSION WAS NOT VOLUNTARY ;

AND

4. THE ERRONEOUS ADMISSION OF THE

CONFESSION WAS PREJUDICIAL EVEN THOUGH

PEITITIONER'S TESTIMONY REITERATED MUCH OF

THE CONTENT OF HIS CONFESSION SINCE THERE

WAS NO SHOWING THAT HIS TESTIMONY WAS NOT

IMPELLED BY HIS EXTRAJUDICIAL CONFESSION.

This Court should grant certiorari to review various

significant constitutional issues concerning the admission of

petitioner's confession at trial, not only to resolve those issues,

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but also to determine if a man is being sentenced to die when an

error of constitutional dimension took place during the preceedings

below.

First, the Court should determine whether under Michigan

v. Mosley, 423 U.S. 96 (1975) or any other cases, an interrogation

can proceed after a defendant has requested and been denied

counsel, Second, the Court should determine whether Michigan v.

Mosley can be extended to the facts of this case to permit inter-

rogation after the defendant has requested to remain silent.

Third, the Court should determine whether under the facts of this

case, the prosecution established by a preponderance of the

evidence that a waiver of constitutional rights was knowing and

intelligent and that the confession was voluntary. Fourth, the

Court should determine whether the testimonial confession by

itself renders the improper admission of a confession harmless

error.

After an interrogation, the police obtained a recorded

confession from Bates, which the court refused to suppress and

which was played to the jury. (TM; TP 177-78). No instruction

regarding the admissibility of the confession was presented to

the jury. The statement was particularly damaging for it consti-

tuted a full confession, was used to impeach Bates' testimony at

trial (TP 313-318) and was undoubtedly before the judge in connec-

tion with the mitigation hearing.

At the time of his arrest and interrogation, Bates was

18 years old. He had an I.Q. of 87, which was described as "in

the category of mental retardation." (T™ Def's Exh. 2; TS Pre-

Sentence Invest. Report p. 10). He was under the influence of

drugs and alcohol. (T™ Bates 5-8, 13-15, 18, 20, 23-24, 26-29,

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33-35, 40; TM Frank Bates 17-18, 26-32). His brother stated he

Saw Bates staggering at the time of his arrest (T™ Frank Bates

30) and further described his brother's condition in the interroga-

tion room as follows:

". . -his face was red. It looked to me like he

was trembling, and his eyes were real fiery [sic];

and I asked him if he was all right. He said

". . «Hell No, I'm not all right.'" (TM Frank

Bates ll).

It was an individual of this mental and physical con-

dition who was taken to the office of the homicide squad, placed

in a windowless interrogation room, and questioned for almost

three and one-half hours.

Bates testified that prior to his confession he said, "I

ain't going to say no more. I want to see a lawyer right now,"

and was told by one of the officers that it was a “bad time of

the day to get a lawyer." (TM Bates 13, 14, 20).

Frank Bates was able to corroborate this exchange

because he overheard it. (TM Frank Bates 33). The officers left

but came back within an hour and resumed the interrogation. (T™

Bates 14-18). At another time during the interrogation Bates

requested a lawyer and was told he did not need one. (T™ Bates

27, 28.) There was no evidence contradicting this evidence

concerning the request and denial of counsel and the continued

interrogation after requests for counsel and to remain silent.

According to Bates, the police told him that if he

cooperated he would only be charged with manslaughter. Frank

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Bates not only overheard this promise, but also was told by the

police that if Bates confessed, Bates would only be charged with

manslaughter. (TM Bates 18-25; TM Frank Bates 12-24, 34-36).

The police required Bates' brother's presence. They

told Bates that his brother had said that he, Bates, had committed

the crime. According to Frank Bates, he had not said this. (T™

Frank Bates 8-9, 1l, 23-25.)

Frank Bates also overheard his brother yelling during

the interrogation, "You aren't going to trick me into a con-

fession." (TM Frank Bates 4s.)

Although Bates signed the waiver of constitutional

rights form, he denies having read it. (TM Bates 26.) He also

said that portions of his confession consisted of information —

provided him by the police. (T™ Bates 35.)

The officers stated that they did not believe that

Bates appeared to be under the influence of drugs or alcohol (T™

Drescher 132-133; T Burgess 166-67.) One officer denied dis-

cussing manslaughter with Bates; yet, the officer admitted he told

Bates he would not be charged with first degree murder, but

rather would be charged with “aggravated murder". Bates incor-

rectly thought there was a difference between these charges

because he said "Well, that's alright". The officer did not

correct Bates' misapprehension. (TM Drescher 133-37, 149-51.)

Another officer conceded he had discussed manslaughter with Bates

and Bates' brother, although he claimed it was in the context of

setting forth the possible charges. (TM Burgess 180-82.) One

officer admitted that during the interrogation Bates did not want

to respond to the charges. Nevertheless, the interrogation

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apparently continued. (T™ Burgess 176.) The officers did not

rebut the testimony that Bates' request for counsel was denied

and that Bates initially said he did not wish to talk. The

officers did say to Bates that he would feel better and relieved

if he got the matter off his chest. (TM Drescher 153.) There is

no indication as to why Bates was not brought before a magistrate

before the lengthy interrogation.

One officer admitted that after the interrogation Bates

“was in a right mental state at that time for a recorded state-

ment to be taken". (TM Drescher 153.)

Petitioner sought to suppress his confession at a pre-

trail hearing on the grounds that it was involuntary and that he

had not waived his constitutional rights. (Motion to Suppress

Statements and Physical Evidence.) The trial court concluded

". . -it'’s the finding of the Court {that the recorded confession]

was given voluntarily and freely, and after having been properly

advised of his rights pursuant to law. . ." (T™ 198.) Despite

the evidence in the record, the trial judge did not address him-

self to the denial of the request for counsel or to the resump-

tion of the interrogation after Bates had elected to remain

silent. The Ohio Supreme Court, without discussing Bates’ request

for counsel and to remain silent, simply concluded that Bates

"knowingly, voluntarily and intelligently waived his constitu-

tional rights." 358 N.E. 2d at 588.

Be The Confession Was Obtained After Peti-

es Ub tained After Peti

tioner Requested And Was Denied Counsel.

Both Bates and his brother testified that during the

interrogation Bates requested counsel on several occasions and

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the police in effect denied and ignored his request and continued

the interrogation that led to the recorded confession. This

testimony was not contradicted. Accordingly, Bates' confession

should have been excluded. Miranda v. Arizona, 384 U.S. 436

(1966); Escobido v. Illinois, 378 U.S. 478 (1964).

As the court stated in Miranda, "If the individual

states that he wants an attorney, the interrogation must cease

until an attorney is present." 384 U.S. at 474. In Michigan v.

Mosley, 423 U.S. 96 (1975), the Court suggested that the Miranda

Opinion does not create a per se proscription of any further

interrogation once the person being questioned has indicated a

desire to remain silent. Mosley, however, does not suggest that

once the person being questioned has asked for any attorney, the

interrogation may continue. On the contrary, the Court in Mosley

specifically distinguished between a request to remain silent and

a request for an attorney by pointing to the clear language of

Miranda requiring that the interrogation cease upon a request for

counsel. 423 U.S. at 102 n. 7; 104 n. 10.

As the court in United States v. Massey, 550 F.2d 300,

307-08 (Sth Cir. 1977) said, in holding a confession inadmissible

after interrogation continued when a request for an attorney was

ignored, "...a valid waiver will not be presumed simply from the

fact that a confession was in fact eventually obtained, Miranda,

384 U.S. at 475, 86 S.Ct. 1602, or that a waiver was eventually

signed."

Despite the seemingly clear language of the Supreme

Court and the holdings of many courts that there can be no

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interrogation after a request for counsel,ll/ there are apparent

contradictions in the lower courts as to whether there can be a

waiver after a request for counsel; +2/ and the Ohio Supreme Court

totally ignored the issue upon a finding of voluntariness.

In view of what appears to be a clear deprivation of

defendant's constitutional rights and some confusion in the lower

courts, the Court should grant the petition.

2. The Confession Was Obtained After Petitioner

Indicated That He Desired To Remain Silent.

Prior to the confession, it is uncontradicted that

Bates stated that he did not wish to speak and wanted an attorney

and that these requests were ignored. In Michigan v. Mosley,

Supra, 423 U.S. 96, the Court held that after a defendant said

he did not wish to speak, the police could resume questioning

under certain circumstances. In that case, the court approved the

resumption of questioning when it occurred, after a "significant

period of time" and after the provision of a fresh set of warnings,

1% E.g. United States v. Priest, 409 F.2d 491, 493 (5th Cir.

69) -(lwnere ere 1S a request for an attorney prior to any

questioning, as in this case, a finding of knowing and intelligent

waiver of the right to an attorney is impossible.") See also

United States v. Kinsman, 540 F.2d 1017, 1019 at n. 1 (9th Cir.

As we interpret the plain language of Miranda, the words

"the interrogation must cease' if the individual in custody asks

for an attorney, means exactly what it says." "Further, Mosle ‘

550 F.2

never asked for an attorney."); United States v. Massey,

300, 307 (Sth Cir. 1977); United States v. Womack, 542 F.2d 1047,

1050 (9th Cir. 1976); People v. Superior Court, 15 Cal. 3d 729,

125 Cal. Rptr. 798, 542 P.2d 1390 FIS75); see United States v.

Cookston, 379 F. Supp. 487 (W.D. Tex. 1974).

12/ Compare United States v. Phaester, 544 F.2d 353, 367 (9th

Cir. 1s76) We conclude at a waiver of rights under Miranda

can occur despite an earlier demand to have an attorney.") with

United States v. Priest, supra, 409 F.2d 491.

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and when it was limited to a subject that had not been covered in

the earlier interrogation. 423 U.S. at 106. Under those facts

the Court held that defendant's ""'right to cut off questioning’

was fully respected. . ." Id. at 104.23/

In the instant case, however, after the request to re-

main silent, the delay in interrogation was only an hour, there is

no evidence of a repeated warning and the subject matter of the

interrogation was basically the same throughout. (TM Bates 15-

18). The facts demonstrate that this is a case “where the police

failed to honor a decision of a person in custody to cut off

questioning, either by refusing to discontinue the interrogation

upon request or by persisting in repeated efforts to wear down

his resistance and make him change his mind." Michigan v. Mosley,

Supra 423 U.S. at 105-06.

Again, despite the facts in the record, the Ohio

Supreme Court ignored the issue and simply made a finding of

voluntariness. This Court should grant the petition to determine

whether the continued interrogation constituted a constitutional

violation.

s The Circumstances Demonstrate That Petitioner

Ee emonstrate That Petitioner

Did Not Knowingly and Intelligently Waive His

Rights to Counsel And To Remain Silent And That

The Confession Was Involuntary.

13/ Some courts have suggested that Mosley applies only to the

special circumstances" in that case. See United States v. Riggs,

537 F.2d 1219, 1222 (4th Cir. 1976); United States v. Cla on,

407 F. Supp. 204, 207 (E.D. Wis. 1976); United states v.

Maddox, 413 F. Supp. 60, 65 (W.D. Okla. :

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The facts of this case makes it clear that the police

utilized the "more sophisticated modes of "persuasion'" upon this

particularly vulnerable defendant. Blackburn v. Alabama, 361 U.S.

199, 206 (1960). The police not only used trickery, isolation,

and overt or at least suggested promises of leniency to obtain a

confession, but also refused petitioner's requests for counsel and

to remain silent.+4/

It is inconceivable that there could be any finding that

petitioner waived his rights to counsel and to remain silent,

especially since courts should “indulge in every reasonable

presumption against a waiver. ..." Brewer v. Williams,

U.S. __, 97 §.Ct. 1232, 1242 (1977). In fact, the trial court

never made an express finding that petitioner had knowingly and

intelligently waived his rights to counsel and to remain silent.

The failure to make such a finding constitutes error. See

Miranda v. Arizona, 384 U.S. 474 (1966); cf. Sims v. Georgia,

385 U.S. 538 (1967); United States v. Goss, 484 F.2d 434 (6th

Cir. 1973).

Petitioner raised the issue as to whether, in view of

his mental condition (not only mental capacity, but effects of

drugs and alcohol) at the time of interrogation, he could provide

a voluntary confession and knowingly and intelligently waive his

constitutional rights. See Blackburn v. Alabama, 361 U.S. 199,

211, (1960); Westbrook v. Arizona, 384 U.S. 150, (1966); Pate v.

Robinson, 383 U.S. 375 (1966); United Statgs v. Silva, 418 F.2d

328, 331 (2d Cir. 1969).

p4/ As a result of the denial of counsel, the confession "must

€ presumed a product of compulsion, subtle or otherwise."

United States v. Priest, 405 F.2d 491, 493 (Sth Cir. 1969).

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Once the mental condition of defendant becomes a factor,

the trial judge not only has to have a hearing on the matter, but

should hold a hearing sua sponte, even if one is not requested.

United States v. Silva, Supra, 418 F.2d at 331. In the instant

case, despite evidence of Bates' mental incapacity and the

effects of drugs and alcohol at the interrogation, no psychiatric

testimony was received and no expert testimony was presented by

the prosecution in connection with the ability of Bates to waive

his constitutional rights and provide a voluntary confession.

Moreover, the evidence suggests that the police did

discuss a lower sentence in return for a confession. Both Bates

and his brother testified that such a promise was made. The

officers, while denying that an overt promise was made, admitted

they discussed the lesser sentence with Bates. An officer admitted

that Bates seemed satisfied that he would be charged with aggra-

vated murder instead of first degree murder (the officer did not

advise Bates of the latter's obvious misapprehension that the two

were different). Surely, in view of the admitted discussion of

lesser offenses, there had to have been at least a "'slight,'"

""implied'" promise, which would render the confession involun-

tary. Brady v. United States, 397 U.s. 742, 753 (1970).

In view of the fact that Bates, with an admittedly low

I.Q., was placed in a room, unrepresented by counsel, interrogated

for several hours by a number of police, with the police using

his brother and discussing alternative sentences, it is no wonder

that the officer said that Bates "was in a right mental state at

33 ; i = %

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that time for a recorded statement to be taken." Under these

circumstances, the government did not meet its "heavy burden" to

establish that petitioner knowingly and intelligently waived his

rights to an attorney and to remain Silent, (Miranda v. Arizona,

Supra, 384 U.S. at 475,) and its burden to show that the con-

fession was voluntary. Lego v. Twomey, 404 U.S. 477 (1972).

If lower courts are going to find confessions admissible

under these facts in death penalty cases, then the Supreme Court

should grant the petition to establish firmer guidelines in con-

nection with the admissibility of confessions.

4. The Erroneous Admission of The Confession

ee sion of the Confession

Was Prejudicial Even Though Petitioner's

Testimony Reiterated Much of The Content

of His Confession Since There Was No

Showing That His Testimony Was Not Impelled

By His Extrajudicial Confession.

The Ohio Supreme Court suggested that because a witness

identified Bates 19/ and because Bates testified and related

essentially the same facts as stated in the confession, Bates was

"not compelled to waive his constitutional right against self-

incrimination" and the denial of the motion to suppress was not

error. 48 Ohio St. 2d 315, 358 N.E. 2d 584, 588.

It is, of course, ". . -axiomatic that a defendant in a

criminal case is deprived of due process of law if his conviction

15/ The identification was certainly suspect. See Supra at

- 6n. l.

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24!

is founded, in whole or in part, upon an involuntary confession,

without regard for the truth or falsity of the confession [cita-

tion], and even though there is ample evidence aside from the con-

fession to support the conviction." Jackson v. Denno, 378 U.S.

368, 376-377 (1964).

Although Bates did testify at trial as to many of the

facts set forth in his confession, 29&/ that testimony followed the

ruling by the court that the confession would be admitted and

the admission of the confession. There is no showing that

defendant would have testified had his confession been excluded.

The Ohio Supreme Court seems to Suggest that a defendant must

establish that the testimony was induced by the confession.

Unlike the situation where a guilty plea precedes any deter-

mination of the admissibility of the confession (McMann v.

Richardson, 397 U.S. 759 (1970), here the recorded confession had

already been admitted into evidence. Petitioner was thus faced

with the choice of not testifying and hoping for a reversal based

upon the erroneous admission of the confession or testifying in

order to deal with the recorded confession. Clearly, the decision

to testify must have been based on the fact that the confession

had been admitted.

The California Supreme Court has “squarely held that in

such a situation the record of the case must ‘dispel beyond a

reasonable doubt the possibility that the defendant took the

stand in an attempt to mitigate the explosive impact' of con-

stitutionally inadmissible evidence. (People v. Spencer (1967),

66 Cal. 2d 158, 169 [57 Cal. Rptr. 163, 424 P.2d 715]." People v.

io/ The confession was, however, utilized to impeach Bates during

€ cross examination. (TP 313-318.)

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Leach, 15 Cal. 3d 419, 447 n. 19, 124 Cal. Rptr. 752, 541 P.24

296 (1975).2/

This Court should grant the petition to determine

whether the testimony of a defendant, without more, automatically

renders the improper admission of a confession harmless beyond a

reasonable doubt as seemingly suggested by the Ohio Supreme

Court.

ty Milton v. Wainwright, 407 U.S. 371 (1972), held error harn-

ess when there was sabetential overwhelming evidence of guilt,

but did not consider the issue of whether a testimonial confession

was induced by the improper admission of a confession. The

situation involving multiple confessions before the admission of

one of them in evidence is also distinguishable. Samora v.

United States, 406 F.2d 1095, 1900 n. 9 (5th Cir. I965). More-

over, in the instant case, the confession contained damaging

material that was before the court in the mitigation hearing.

VII

CONCLUS ION

For the above reasons, a writ of certiorari should be

issued to review the judgment of the Supreme Court of Ohio.

Dated: May /&, 1977

Respectfully submitted,

RICHARD M. MOSK

MARILYN EPSTEIN LEVINE

1800 Century Park East

Los Angeles, California 90067

JACK GREENBERG

JAMES M. NABRIT, III

PEGGY C. DAVIS

JOEL BERGER

DAVID E. KENDALL

10 Columbus Circle, Suite 2030

New York, New York 10019

ANTHONY G. ARMSTERDAM

Stanford University Law School

Stanford, California 94305

oy Kile tM rrk

Richard M. Mosk ”

ATTORNEYS FOR PETITIONER

APPENDIX I

584 Ohio 358 NORTH EASTERN REPORTER, 2d SERIES

48 Ohio St2d 315 .

The STATE of Ohio, Appellee,

BATES, Appellant.

‘ No. 76-904.

Supreme Court of Ohio.

Dee. 23, 1976.

Defendant was convicted in the Court

of Common Pleas of murder while attempt-

ing to commit aggravated robbery and at-

tempted aggravated robbery and «defendant

was sentenced to death on the muriler

Se em ee ree ee me ee .

APPENDIX I

%\ F ‘ °

APPENDIX I

STATE v. BATES

Ohio 585

count. The Court of Appeals, Hamilton

County, affirmed. On appeal as of right,

the Supreme Court held that the record

sufficiently established that defendant had

knowingly, voluntarily and_ intelligently

waived his constitutional rights before he

gave a statement to police; that the trial

court correctly admitted cardboard targets

which had been used by police to conduct

tests for the purpose of establishing the

distance between the shotgun barrel and

the victim at the time of the fatal shooting;

that the trial court’s instructions on the

element of purpose required for an aggra-

vated murder conviction were correct; and

that evidence failed to establish mitigating

circumstances.

Judgment of the Cc art of Appeals af-

firmed.

1. Criminal Law e414

Evidence that, inter alia, defendant

was advised of his rights three times before

he gave police recorded statement describ-

ing his role in an attempted armed robbery

and homicide and that defendant was nei-

ther drunk nor under the influence of drugs

when he signed standard police notification

of rights form sufficiently established that

defendant knowingly and _ voluntarily

waived his constitutional rights and that his

subsequent statement was admissible in

prosecution for murder and attempted ag-

gravated armed robbery. U.S.C.A.Const.

Amends. 5, 6; RC. §§ 2903.01, 2911.01,

2923.02.

2. Criminal Law @=404(4)

In view of fact that gun experiments

were conducted and exhibits with reference

thereto introduced to demonstrate the

spread, not the penetration, of shotgun pel-

lets, and that spread of pellets was relevant

to question of distance between weapon and

victim and thus to whether shooting was

purposeful or accidental, cardboard targets

used to conduct tests of murder weapon

were relevant and admissible in murder

prosecution, despite contention that targets

provided different amount of resistance to

shotgun blasts than did victim's body and so

did not recreate conditions «f homicide.

APPENDIX I

3. Criminal Law @741(1)

In prosecution for aggravated murder

and attempted aggravated armed robbery,

it was for jury to decide what weight to

accord to evidence concerning experiments

which State conducted to establish distance

between weapon and victim at time fatal

shot was fired.

4. Criminal Law @=829(4)

Where trial court, in prosecution for

aggravated murder and attempted aggra-

vated armed robbery, instructed jury that it

could find defendant guilty of aggravated

murder only if it found that killing was

done purposely and told jury that “To do an

act purposely is to do it intentionally and

not accidentally” and where instructions

were such that jury could have found that

accident occurred, no error resulted from

trial court’s refusal to give standard in-

struction on accident. R.C. §§ 2903.01, —

2923.02.

5. Homicide 354

Evidence presented at mitigation hear-

ing which included psychiatric and presen-

tence probation reports sufficiently sup-

ported trial court’s finding that there were

no mitigating circumstances relative to pen-

alty to be mposed for offense of aggrava-

ted murder. RC. § 2929.03(E).

On January 24, 1975, the Hamilton Coun-

ty grand jury returned a two-count indict-

ment, with a specification. The first count

charged Leroy Bates and Ellis Shelton with

purposely causing the death of Lloyd Ad-

kins while attempting to commit aggrava-

ted robbery in violation of R.C. 2903.01.

The specification to the first count stated

that the offense contained in the first count

was committed while Bates and Shelton

were attempting to commit aggravated rob-

bery.

The second count charged the pair with

attempted aggravated robbery, as defined

by R.C. 2911.01 and in violation of/ RC.

2923.02.

In a separate trial, Bates was found

guilty on each count and the specification.

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APPENDIX ri —- ‘

586 Ohio 358 NORTH EASTERN REPORTER, 2d SERIES

Following a psychiatric examination and a

presentence probation report, a mitigation

hearing was conducted. The court found

_an absence of any mitigating factors, and,

on July 1, 1975, Bates was sentenced to

death on the first count and the specifica-

tion thereto. On the second count, he re-

ceived a sentence for a term of years.

The Court of Appeals affirmed the con-

viction and sentence.

The cause is now before this court upon

an appeal as of right.

Simon L. Leis, Jr., Pros. Atty., Robert R.

Hastings, Jr., and Thomas P. Longano, Cin-

cinnati, for appellee.

Latimer & Swing Co., L. P. A., Albert J.

Mestemaker, Schwartz & Schwartz and Mi-

chael S. Schwartz, Cincinnati, for appellant.

PER CURIAM.

The record before us establishes the fol-

lowing facts:

On November 25, 1974, the defendant-ap-

pellant, Leroy Bates, was living at his sis-

ter’s residence located at 2248 Wheeler

Street, in Cincinnati. Ellis Shelton, a

friend of Leroy Bates for about six years,

stopped by the Wheeler Street address to

see Bates that afternoon.

Shelton explained to Bates that he was

planning an armed robbery of the Warner

Tavern and that it would be necessary for

him to have a gun. Shelton also informed

Bates that when he pulled the robbery off

he would have.the gun with him; that he

would have ammunition for the gun; and

that it would be loaded.

Shelton asked Bates if he knew of anyone

who had a gun and, if so, could he obtain it.

' Bates told Shelton that he knew of an indi-

vidual who had guns and that he could get

a gun for Shelton. He then telephoned a

friend by the name of Kenneth Carter.

From past experience he knew that Carter

had access to firearms. Bates asked Carter

to loan him a gun, but Carter refused and

said that he was willing to sell him one for

$20. Bates agreed to this purchase price.

During their discussion, Shelton told

Bates that he would need help and assist-

ance in executing the robbery. When asked

if he would assist Shelton in the robbery,

Bates agreed. -

Later that day, in the early evening, Ken-

neth Carter arrived at the Wheeler Street

address carrying a sawed-off, 12-gauge

shotgun. Shelton met Carter on the street

in front of Bates’ sister's home where Car-

ter handed the gun to Shelton, who, in turn,

handed $13 to Carter. The balance of $7

was to be paid to Carter at a later time.

Shelton was also given three or four shot-

gun shells with number 5 or 6 size shot.

Shelton departed after the transaction

with Carter and subsequently returned in

the late evening hours of the same day.

Shelton and Bates then left the Wheeler

Street address together and headed for a

wooded hillside known as “TV Hill,” located

in the Wheeler Street area, the property of

WCET television studios.

When the two men arrived at the hill,

Shelton removed the unassembled shotgun

from a bag. The weapon, in three pieces,

was then assembled by Shelton. Appellant

observed Shelton assembling the weapon

and also saw that Shelton was in possession

of several shotgun shells for the weapon.

Both men then put stocking masks over

their heads before they proceeded to the

bar. Bates’ role in the robbery was to go

behind the bar and take the money while

Shelton held the shotgun on the patrons.

’ The expected take in the robbery was to be

about $200.

They departed “TV Hill” together, head-

ed for the Warner Tavern located at 303

Warner Street. Upon their arrival both

men looked into the tavern and observed

three people sitting in the bar.

Bates and Shelton then entered the tav-

ern with the former leading the way. The

time was approximately midnight or shortly

thereafter. Lois Wells was tending bar and

standing next to the cash register. Robert

Schultheis was seated at the bar located in

the rear part of the barroom. Lloyd Ad-

APPENDIX I

ee ee

a ne

ee eed Del en all

—_—-_

—_—_

APPENDIX I

STATE v. BATES

Ohio 587

Cite as 358 N.E2d $84

kins, an off-<juty Pinkerton guard, was

seated at the bar next to the front en-

trance. Adkins and Schultheis were ap-

proximately 15 to 18 feet apart.

Lois Wells asked the masked men what

they wanted. Shelton remained by the

front door and Bates moved to the rear

area of the bar. The opening to the rear of

the bar was located next to where Schul-

theis was sitting. After Lois Wells in-

quired as to the nature of their business,

Shelton raised the shotgun over the bar

aiming directly at her. Wells then stated,

“All right, I know what you want.”

When Bates started to move around to

her side of the bar, it was Wells’ intention

to let him take the money. As Lois Wells

moved to the rear of the bar, she heard

Adkins say to Shelton, “Oh, no you don’t!”

She then turned and looked toward the

front of the tavern, where Shelton and Ad-

kins were struggling. Wells heard Shelton

shout at Adkins to get back or he would be

killed. Wells then observed Shelton push

Adkins off balance. Shelton then stepped

back and fired the fatal shot directly at

Adkins from a distance of several feet.

Meanwhile, Bates engaged Schultheis in a

fight and struck him. As a result, Schul-

theis Was knocked to the floor and kicked

by Bates. Schultheis then managed to’get

off the floor and move to a back room and

hide $280 that he had on his person.

Lois Wells identified Bates, at the trial,

as the man who entered the tavern first

and subsequently struck Schultheis.

After the shooting, Bates and Shelton

fled the tavern on foot. They went back to

“TV Hill” and stripped the stocking masks

from their heads and threw them away.

The shotgun was then disassembled, and

the two returned to 2248 Wheeler Street.

At approximately 1:30 a. m., on Novem-

ber 26, 1974, Kenneth Carter received a

telephone call from Bates asking Carter to

pick up the shotgun that Shelton had used

- to murder Adkins. Carter did not reclaim

the gun as the appellant had requested.

Carter saw the appellant, at approxi-

mately 2:00 p. m., on November 26, 1974,

and appellant again told Carter of the

events of the preceding evening, including

the shooting.

Carter testified at trial that the gun was

capable of firing. He also testified that the

weapon had to be cucked before it could be

fired. The shotgun was identified at trial.

Bates hid the gun in the backyard of his

sister’s residence and kept it there for about

two days. Then he took the gun, wrapped

in a towel and secured with a string, to a

wooded area in Mt. Airy Forest near Kirby

Road where he threw the shotgun away.

On December 12, 1974, Bates was placed

under arrest. He was repeatedly advised of

his constitutional rights and signed a waiv-

er of his rights. The appellant then freely

told police of his involvement in the robbery

attempt and murder which occurred at the

Warner Tavern.

The coroner testified that the cause of

death was hemorrhage as a result of a

gunshot wound of the chest.

II.

{1} Appellant advances four proposi-

tions of law, the first of which.asserts that:

“The court erred to the prejudice of de-

fendant-appellant in denying his motion to

suppress his statement made to law en-

forcement officers in violation of his rights

guaranteed by the Fifth and Sixth Amend-

ments to the Constitution of the United

States of America.” '

The record indicates that Bates was ar-

rested at his sister’s home at about 3:00 p.

m. on December 12, 1974, and apprised of

what the police wished to talk to him about.

According to Officer Burgess’ testimony,

his speech was clear and his appearance

normal, and he was neither drunk nor un-

der the influence of drugs. They arrived at

the homicide squad office at approximately

3:30 p. m. At that time, Officer Sefton

advised him orally of his constitutional

rights in an interrogation room. Next, de-

fendant was informed that his brother,

Frank, and Kenneth Carter had told police

about his involvement in the attempted rob-

bery and killing. He spoke to his brother,

APPENDIX I

ee nme oe °

—ee

_— 2

APPENDIX I

588 Ohio

who was brought to the interrogation room,

and the latter denied saying anything to the

police.

Officer Drescher then talked to the appel-

lant after first advising him of his constitu-

tional rights. They talked for an hour.

Drescher testified that, based on the fact

that he had talked to the appellant for over

an hour and upon his prior police experience

with persons under the influence of alcohol

or drugs, it was his opinion that Bates was

not under the influence of an alcoholic bev-

erage or a drug.

~ After talking with Drescher for an hour,

Bates signed a standard police notification

of rights form, which waiver set out his

éonstitutional rights, . .* then gave Dresch-

er a recorded statement. At the outset of

the recorded statement, Bates war again

advised that:

(1) He had the right to remain silent;

(2) anything he said could be used

against him in court;

(3) he had the right to talk to counsel

before any questioning;

(4) he had a right to have an attorney

with him when he answered questions;

(5) if he could not afford an attorney, -

one would be appointed for him; and

(6) if he started to answer questions, he

still had the right to stop answering ques-

tions at any time.

In the course of the interrogation, Officer

Burgess asked specifically whether Bates

had been drinking or was under the influ-

ence of any drugs, and he stated he was

not.

Thus, the record discloses beyond perad-

venture that the appellant knowingly, vol-

untarily and intelligently waived his consti-

tutional rights. There is nothing in the

record to indicate that Bates misapprehend-

ed his rights as was the case in State v.

Jones (1974), 37 Ohio St.2d 21, 306 N.E.2d

409, and State v. Parker (1975), 44 Ohio

St.2d 172, 389 N.E.2d 648. He.was advised

of his rights three times: Once by Officer

Sefton; once by Officer Drescher; and once

in the waiver of rights form at the outset of

APPENDIX I

a” S.

—

358 NORTH EASTERN REPORTER, 2d SERIES

the recorded statement. He signed the

waiver of rights‘ form.

It must also be noted that the state pro-

duced an eyewitness, Lois Weils, who iden-

tified Bates as one of the two men who

attempted to commit aggravated robbery at

the Warner Tavern on November 26, 1974,

shortly after midnight.

Bates testified in his own behalf and re-

lated to the jury essentially the same story

he related in the recorded statement. It is

not urged by appellant that the introduc-

tion of the recorded statement required him

to take the witness stand. Thus, he was

not compelled to waive his constitutional

right against self-incrimination.

For these reasons, in our judgment, the

trial court did not err in overruling appel-

lant’s motion to suppress his recorded state-

ment, and his proposition of law No. 1

rejected. .

: UL

{2] For his second proposition of law,

appellant claims that:

“The trial court erred to the prejudice of

defendant-appellant when it overruled his

objection to the receipt in evidence of

state’s exhibits seventeen and eighteen.”

State’s exhibit Nos. 17 and 18 are two

cardboard targets used to conduct certain

tests’ by police officers for the purpose of -

establishing the distance between the ~“ot-

gun barrel and the victim, Adkins ~*«s

question of distance was relevant to the

issue of whether the shooting was purpose-

ful or accidental. The state’s witness re-

ferred to the exhibits in offering his opinion

that the fatal shot was fired at the dece-

dent from approximately four to five feet

away, a conclusion tending to negate appel-

lant’s position that the shotgun was fired

accidentally in the course of a physical

struggle over its possession.

The basis for the objection to the exhibits

below and the challenge to their admission

at the appellate level is that there was no

showing that firing the shotgun at exhibit

Nos. 17 and 18 recreated a condition sub-

stantially similar to the conditions existing

a oe alee <

———

at the time of the homicide. More specifi-

cally, appellant contends that the cardboard

targets provided a different amount of re-

sistance to the shotgun blasts than did Ad-

kins’ body, because Adkins wore a number

of items of clothing and had a pack of

cigarettes in his breast pocket.

A reading of the record reveals that the

obvious purpose for which the gun experi-

ments were conducted, and the exhibits

with reference thereto introduced, was to

demonstrate the spread, not penetration of

the shotgun pellets. Evidence of the extent

of spread was offered in proof of distance

between weapon and victim. With this

purpose in mind, any arguable differences

between the experiments and the actual

conditions as they existed when Adkins was

shot, with respect to his clothing and the

cigarette package, would be irrelevant to

the question of the admissibility of exhibit

Nos. 17 and 18.

There was no evidence at the trial that

the use of the cardboard did, in fact, create

substantially different conditions than

those existing at the scene of the homicide.

As stated in 21 Ohio Jurisprudence 2d 546,

Evidence, Section 522,“° ° * the ques-

tions of admissibility as affected by dissimi-

larity of conditions is essentially a matter

within the discretion of the trial court.”

[3] We find no abuse of discretion in the

trial court’s ruling on this matter. What

weight to grant the evidence, of course,

rested with the jury. Proposition of law

No. 2 is not accepted.

IV.

{4} Appellant contends in his third prop-

osition of law that:

The trial court erred to the prejudice of

defendant-appellant when it refused to give

the standard instruction on accident to the

jury.”

The record demonstrates the jury was

instructed that before it could find Bates

guilty of aggravated murder while attempt-

ing to commit aggravated robbery, it had to

find, among other things, that the killing of

Lloyd Adkins was done purposely.

APPENDIX I

STATE v. BATES

Cite as 358 N.E-2d 584

Ohio 589

The trial court also instructed the jury as

follows: ,

“Purpose to kill is an essential element of

the crime of aggravated murder. A person

acts purposely when it is his specific inten-

tion to cause a certain result. It must be

established in this case that at the time in

question there was present in the mind of

the defendant a specific intention to kill. A

person acts purposely when the gist of the

offense is a prohibition against conduct of a

certain nature regardless of what the of-

fender intends to accomplish; thereby it is

his specific intention to engage in conduct

of that nature. Purpose is a decision of the

mind to do an act with a conscious objective

of producing a specific result. To do an act

purposely is to do it intentionally and not

accidentally.* Purpose and intent mean the

same thing. The purpose with which a

person does an act is known only to himself

unless he expresses it to others or indicates

it by his conduct. The purpose with which

a person does an act is determined by the

manner in which it was done, the means or

weapon used, and all the other facts and

circumstances in evidence. If a wonnd [sic }

is inflicted by a person with a deadly weap-

on in a manner calculated to destroy life,

the purpose to kill may be inferred from the

use of the weapon.” (Emphasis added.)

The court also instructed the jury on less-

er included offenses of manslaughter and

involuntary manslaughter:

“The crime of manslaughter is distin-

guished from aggravated murder by the

absence or failure to prove purpose to kil!.”

As pointed out by the Court of Appeals in

its opinion, the trial judge gave an impecca-

ble charge which included the possibility of

a finding by the jury of accident, thereby

barring a conviction of aggravated murder.

The charge as given was correct; appel-

lant’s proposition of law is incorrect and is

not accepted.

(5) It is urged in appellant's fourth

proposition of law that:

APPENDIX I

———w ee ee mm tee

APPENDIX I

590 Ohio 358 NORTH EASTERN REPORTER, 2d SERIES

“The trial court erred as a matter of law Accordingly, the judgment of the Court

when it failed to find the existence of one of Appeals is affirmed.

Or more mitigating circumstances on Ich!f Judgment affirmed.

of defendant-appellant relative to the pen-

alty to be imposed for the offense of aggra- C. WILLIAM O'NEILL, C. J., and HER-

vated murder.” BERT, J. J. P. CORRIGAN, STERN. CEL.

R.C. 2929.03(E) provides that: EBREZZE, WILLIAM B. BROWN and

4 “Upon consideration of the reports, testi- PAUL W. BROWN, JJ., concur.

mony, other evidence, statement of the of-

fender, and arguments of counsel submitted i

é to the court pursuant to division (D) of this

section, if the court finds, or if the panel of

three judges unanimously finds that none

~ of the mitigating circumstances listed in

division (B) of section 2929.04 of the Re-

vised Code is established by a preponder-

ance of the evidence, it shall impose sen-

d tence of death on the offender. Otherwise,

it shall impose sentence of life imprison-

ment on the offender.”

The mitigation hearing in this cause was

heard on the 30th day of J une, 1975, before

Judge William S. Mathews, Court of Com-

mon Pleas of Hamilton County, Ohio. The

report of Dr. Hamilton was Stipulated as

‘ _ Was the report of Dr. McDevitt and Dr.

: Weaver, except for the final two para-

graphs of the latter report. In addition, the

probation report was Stipulated. The ap-

pellant and his mother also testified at the

mitigation hearing. _

At the conclusion of the hearing, the

court ruled that the evidence failed to show

by @ preponderance that:

(1) The victim of the offense induced or

facilitated it; -

* (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; or

(3) the offense was primarily the product

of the offender's psychosis or mental defi-

ciency, though such condition is insufficient

to establish the defense of insanity.

In the face of the record, this ruling of

the trial court and its affirmance by the

Court of Appeals is totally justified.

‘ APPENDIX I

APPENDIX II, the opinion of the Court of Appeals,

First Appellate District, Hamilton County, Ohio

was not of reproducible quality.

o onrwanaet wf ND HF

APPENDIX III

STATUTORY PROVISIONS INVOLVED

Ohio Revised Code §2903.01 Aggravated murder.

(A) No person shall purposely, and with prior calcu-

lation and design, cause the death of another.

(B). No person shall purposely cause the death of

another while committing or attempting to commit, or while fleeing

immediately after committing or attempting to commit kidnapping,

rape, aggravated arson or arson, aggravated robbery or robbery,

aggravated burglary or burglary, or escape.

vated murder, and shall be punished as provided in section 2929.02

of the Revised Code.

Ohio Revised Code §2911.01 Aggravated robbery.

(A) No person, in attempting or committing a theft

offense as defined in section 2913.01 of the Revised Code, or in

fleeing immediately after such attempt or offense, shall do

either of the following:

(1) Have a deadly weapon or dangerous ordnance

as defined in section 2923.11 of the Revised Code on or about his

person or under his control;

(2) Inflict, or attempt to inflict serious

physical harm on another.

(B) Whoever violates this section is guilty of aggra-

vated robbery, a felony of the first degree.

Ohio Revised Code §2929.02 Penalties for murder.

(A) Whoever is convicted of aggravated murder in vio-

lation 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.

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 2923.04 of the Revised

Code, or was committed for hire or for purpose of gain.

o onrankae oa wn Fr

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So &oRoa ah ke AHP OO

(D) The court shall not impose a fine or fines for

aggravated murder or murder which, in the aggregate and to the

extent not suspended by the court, exceeds the amount which the

offender is or will be able to pay by the method and within the

time allowed without undue hardship to himself or his dependents,

or will prevent him from making reparation for the victim's

wrongful death.

Ohio Revised Code §2929.03 Imposing sentence for a capital offense.

(A) If the indictment or count in the indictment

charging aggravated murder contains no specification of an aggra-

vating circumstance listed in division (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 imprisonment

on the offender.

(B) If the indictment or count in the indictment ‘

charging aggravated murder contains one or more specifications of

aggravating 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 is

guilty or not guilty of each specification. The jury shall be

instructed 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.

charging aggravated murder contains one or more specifications of

aggravating circumstances listed in division (A) of section

2929.04 of the Revised Code, then, following a verdict of guilty

of the charge but not guilty 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;

(2) By the trial judge, if the offender was tried

by jury.

(D) When death may be imposed as a penalty for aggra-

vated murder, the court shall require a pre-sentence investigation

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 be imposed on the offender.

If the offender chooses to make a statement, he is subject to

cross-examination only if he consents to make such statement

under oath or affirmation.

o onraonaeer®a=wnss Ff

(E) Upon consideration of the reports, testimony,

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 judges

unanimously finds that none of the mitigating 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. Otherwise, it shall impose

sentence of life imprisonment on the offender.

Ohio Revised Code §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

reasonable doubt:

(1) The offense was the assassination of the

president of the United States or a 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 purposes of this division, a person is a candidate

if he has been nominated for election according 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.

(2) 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 as defined in section

2921.01 of the Revised Code.

(5) The offender has previously been convicted of

an offense of which the gist was the purposeful killing of or

attempt to kill another, committed prior to the offense at bar,

or the offense 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) The victim of the offense was a law enforcement

officer whom the offender knew to be such, and either the victim

was engaged in his duties at the time of the offense, or it was

the offender's specific purpose to kill a law enforcement officer.

(7) The offense was committed while the offender

was committing, attempting to commit, or fleeing immediately

after committing or attempting to commit kidnapping, rape, aggra-

vated arson, aggravated robbery, or aggravated burglary.

(B) Regardless of whether one or more of the aggra-

vating circumstances listed in division (A) of this section is

specified in the indictment and proved beyond a reasonable doubt,

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6 & R&S &h& & & hw PO

the death penalty for aggravated murder is precluded when, con-

sidering 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 [preponderance] 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 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.

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sorobs BSC KRBRRPRBRBE EGF ERHB ERED P O

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

NO. A-739

LEROY BATES, Petitioner

Vv.

STATE OF OHIO, Respondent

CERTIFICATE OF SERVICE

RICHARD M. MOSK, a member of the Bar of this Court,

certifies that pursuant to Rule 33 he served the within Motion for

Leave to Proceed in Forma Pauperis and the Petition for a Writ of

Certiorari to the Supreme Court of the State of Ohio on the

counsel for respondent by enclosing a copy thereof in an envelope,

airmail postage prepaid addressed to:

Simon L. Leis, Jr. Attorney General

Robert R. Hastings, Jr. State of Ohio

Thomas P. Longano 30 E. Broad

420 Hamilton County Court Columbus, Ohio

House

Court & Main Streets

Cincinnati, Ohio 45202

Attorneys for Plaintiff State of Ohio

and depositing the same in the United States mails at Los Angeles,

California, on May 18, 1977, and furcher certifies that all

parties required to be served have been served.

tut / Ly Mark,

Counsel fo stiticast

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.