Appendix — EDWARDS v. OHIO (No. 76-6837)

SL ‘

MAY 2 8 1677

— arent OF THE CLepy

SUPREME COURT OF THE UNITED ‘#BALES"© COURT, Us

——

October Term, 1976

——_— — es

FLOYD EDWARDS, Petitioner

STATE .OF OHIO, Respondent.

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI TO

OHIO SUPREME COURT

Stephan M. Gabalac Theodore Charparkoff

Summit County Prosecutor 501 East Exchange Street

City-County Safety Building Akron, Ohio 44302

Akron, Ohio 44308

Albert S. Rakas

Counsel for Respondent Richard L. Aynes

Robert J. Croyle

Appellate Review Office

School of Law

The University of Akron

Akron, Ohio 44325

Counsel for Petitioner

INDEX

Opinion of the Ohio Supreme Court ....+4+s+++eee eee

Decision and Journal Entry of the Ohio Court of Appeals ...

Miscellaneous Journal Entries of the Ohio Court of Common Pleas

Indictment ..++s¢+seseteeeeve ee eevee eeseer eevee

Portions of the Transcript ....+4++s+se¢eeseseesee8e8e

Order Extending Time to File Petition for Writ of Certiorari. .

Letters and Other Materials Pertaining to Psychiatric Evaluation

Miscellaneous Unreported Decisions and Portions of Transcripts

from Other Relevant Cases ...+5+se e+ eee ee eevee

Criminal Justice Statistics Form. ...++++e«#+#+#+#+e#+e#e8#-s

Portion of Petitioner's Brief in the Ohio Supreme Court ....

Portion of Pre-Sentence Investigation Report ....+ + «+ «© « «

Certificate of Service ..«-e+«ereervsvseeeveeev,8e eevee

138

139

151

180

181

183

185

49 Ohio St. 2d) STATE v. EDWARDS. 31

Statement of the Case.

Tur Srate or Omo, Arpricer, v. Mowanon, Areruan

! EGite as State v. Kdwards (1976), 49 Ohio St. 2d 31.)

Criminal law—Aggravated murder—Evidence—Corpus de-

ligti—Proved, how—Confession—Voluntary, whea—

Admissibility—Imposition of death pena!ty. "

ia. The corpus delicti of a crime is the body or substance of

the crime, included in which are usually two elements:

(1) the act and (2) the criminal agency of the aet.

b. ‘here must be some evidence in addition to a confession

tending to establish the corpus delicti, before such

confession is admissible.

ce. The quantum or weight of such additional or extraneous

evidence is not of itsclf required to be equal to proof

beyond a reasonable doubt, nor even enough to make

a prima facie case. See State v. Maranda, 94 Ohio St.

364.

2. In deciding whether a defendant's confession is involun-

‘ tarily induced, the court should consider the totality

of the circumstances, including the age, mentality, and

prior criminal experience of the accused; the length,

intensity, and frequency of interrogation; the exist-

ence of physical deprivation or mistreatment; and the

existence of threat or inducement.

(No. 76-38—Decided December 29, 1976.)

Arrgat from the Court of Appeals for Sununit County.

'

On December 28, 1974, Joseph Eshack, Jr., was shot

and killed at his place of business located at 223 Wooster

Avenue, Akron. He was found by the Akron police lying

with his face down in the aisle of his storeroom. His busi-

ness consisted of the sale and rental of used tools.

Prior to the police discovering Eshack, lloyd Fid-

wards met with a friend named Standford Harris. Wdwards

told Harris that he was going to rob Joseph Fshack. Ed-

wards asked Harris to participate and showed him a gun.

Harris consented. Edwards and Harris entered the store

(1)

BEST GOPY AVAILABLE

32 JANUARY TERM, 1976. [49 Ohio St. 2d

Statement of the Case.

and soon thereafter argued with Eshack over the price of

various tools scattered over the floor. The last item dis-

cussed was a pair of wire cutters, and, as Eshack bent over

to pick them up, Edwards pulled the gun from his pocket

and demanded Eshack’s money. Edwards grabbed Eshack’s

arm and a struggle ensued. Edwards fired a bullet into

the back of Eshack’s head. The shot was fatal.

After the shot was fired, Eshack’s wallet was taken.

It contained some credit cards, identification papers, other

miscellaneous papers, and $65, The money was divided be-

tween Edwards and Harris. The wallet was later dis-

carded in tho basement of a nearby apartment house. Gary

Hendon, a maintenance man at the Edgewood Home Apart-

ments, found Mshack’s wallet in the basement of one of the

apartment buildings. Hendon knew Edwards, and re-

membered secing him in that basement two or three days

before finding the wallet.

At about 5:30 p. m., on January 9, 1975, Edwards was

arrested by two detectives of the Akron police, Harold

Craig and Grover Goodwell. Following the arrest, Edwards

was taken to the police station to be interrogated. After

receiving his Miranda warniugs from detective sergeant

Russell Cross, defendant made an oral, unrecorded incrim-

inating statement. Also present in the room at the time of

that statement were Craig and Goodwell.

At 8:20 p. m., later that day, Edwards, after receiv-

ing another explanation of his constitutional rights, gave

a tape-recorded statement of his confession in the presence

of assistant county prosecuto: John Shoemaker, Cross and

Goodwell. When the prosecutor flipped tho cassette to sido

two, it did not properly engage. Approximately 75 fee

of the tape was blank '

At 10:25 p. m., another recorded statement was taken

to fill in the blank 75 feet. Shoemaker again road Edwards

his Miranda warnings. Edwards repeated his confossion.

Also present in the room wore Craig, and one Haywooil

Manning. ris

Sometime during the interrogation of Edwards tho

49 Ohio St. 2d) STATE v. EDWARDS. 33

| Opinion, per O’NEILL, C. J.

location of the gun was ascertained. A search warrant was

drawn and a search of 1125 Inman Court was made. Dur-

ing that search, a .32 caliber automatic pistol was found.

Edwards admitted that the gun was the one he used to

shoot Eshack. This statement was recorded at 2:45 a. m.

on January 10, 1975, after Edwards had again been advised

of his consitutional rights by Shoemaker. The gun was

eventually physically linked to the crime through a ballis-

tics test.

Defendant was subsequently indicted by the Swnmit

County Grand Jury for aggravated murder with two spcci-

fications, R. C. 2929.04(A)(3) and 2929.04(A)(7), and for

aggravated robbery. The defendant was arraigned on Janu-

ary 17, 1975, and plead not guilty. At the arraignment, the

court ordered a psychiatric examination of the defendant

and set the date of the trial for March-4, 1975. Elliot Mig-

dal, M. D., a psychiatrist, and Daniel Rienhold, a psycholo-

gist, examined defendant prior to trial. The jury found the

defendant guilty of aggravated murder, guilty of the second

specification and guilty of aggravated robbery. Following

a mitigation hearing, defendant was sentenced to death on

the aggravated-murder charge, and was also sentenced

on the aggravated-robbery charge.

Upon appeal to the Court of Appeals, the judgment of

the trial court was affirmed, and the cause is now before

this court as a matter of right.

Mr. Stephan M. Gabalac, prosecuting attorney, and

Mr. Carl M. Layman, III, for appellee.

Messrs, Chuparkoff, Lombardi & Reed and Mr. Ted

Chuparkoff, for appellant.

O’Neux, C. J. Appellant presents 12 assignments of

error (hereinafter referred ? as ‘‘propositions of law’’).

In his fourth proposition of law, appellant contends

that the trial court erred in finding that the state had pre-

sented sufficient evidence to show the commission of an

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34 JANUARY TERM, 1976. [49 Ohio St. 2d

Opinion, per O’NeILL, C. J.:

aggravated robbery prior to the admission of the appel-

lant’s confession to that offense. bce pe rh

The relevant rule of law is found in State v. Maranda

(1916), 94 Ohio St. 364, 114 N. BE. 1038, as follows: '

‘*1. By the corpus delicti of a crime is meant the body

or substance of the crime, included in which are - usually.

two elements: 1. The act. 2. The criminal agency of. the,

act. ' Mhongr eres y

**2. It has long been established as a general rule in:

Ohio that there must be some evidence outside of a con-

fessién tending te eatablish the carpus deliati, hefare

such confession is admissible.. The quantum or weight of.

such outside or extraneous evidence is not of itself to be

equal to proof beyond a reasonable doubt, nor even enough

to make it a prima facie case. * * *’’

Under count two of the indictment, the material cle-

ments of aggravated robbery relevant herein include the

following: (1) without the owner’s consent, to obtain or

exert control over the owner’s property, (2) a purpose

to deprive the owner of his property, and (3) the defend-

ant in the commission of the act or in fleeing immediately

thereafter, either to have on or about his person or under

his control a deadly weapon or dangerous ordnance as de-.

fined in R. C. 2923.11, or to inflict serious physical harm

on another. oo

The defendant contends that ‘‘there is absolutely no

evidence offered by the state that anything of value was

ever taken from the decedent.’’ If not, the argument con-

tinues, excluding Edward’s confessions, “there was no evi-

dence from which it can be said by clear and uncquivocal

roof that decedent was killed in the course of a robbery.’’.

he defendant concludes that there was insufficient evidence

to prove that an aggravated robbery was committed, for the

following reasons: (1) the fact that the defendant was

found without a wallet, when no evidence was presented

that he even carried a wallet, cannot be said to be circum

stantial evidence he was robbed, especially when it was

discovered that the decedent did have money on his per-

49 Ohio St.2d] “ STATE v. EDWARDS. 35

Opinion, per O'Neitt, C. J.

son, (2) the fact that a wallet was later found contaming

the decedent’s identification cards does not show the wal-

let. was owned by the decedent, and (3) the evidence was

not clear whether defendant was seen in the vicinity of the

wallet before or after the decedent was found. :

In rebuttal, the state emphasizes paragraph two of

the syllabus in Maranda, supra. In order to make Edwards’

confession admissible, the state need only produce some

evidence of the material elements listed above. ‘‘The quan-

tum or weight of such outside or extraneous evidence is not

ef itself te be equal te preef beyend a reasonable deult, var

even enough to make it a prima facie case.” -Maranda,

supra.

‘ In the instant case, a few days following decedent’s

death a wallet was found in the basement of an apartment

complex. The billfold contained some credit cards, identi-

fication papers and miscellaneous papers of the decedent,

but no money. Considering those facts, the state concludes

that sufficient evidence existed to establish the corpus

deliclt of aggravated robbery.

The necessity of independently proving the corpus

delicti to render admissible an extrajudicial confession is

a well-established rule of evidence. Its origin is explained

by Judge Wanamaker in State v. Maranda, supra, at page

370, as follows:

‘‘This doctrine touching corpus delicti is of ancient

origin and was born out of great caution by the courts, in

consideration of certain cases of homicide wherein it had

turned out that by reason of a failure of the government to

prove the death of the person charged as having been

murdered it so happened that such person sometimes sur-

vived the person accused as his murderer. Therefore, the

rule that there must be some evidence tending to prove

the fact that death had actually ensued; which was later

followed by an additional requirement of some evidence

that that death was brought about by some criminal

agency.”’

‘Considering ‘the revolution in criminal law of tho

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36 JANUARY TERM, 1976. [49 Ohio St. 24

Opinion, per O’Nemt, C. J.

1960’s and the vast number of procedural safeguards pro-

tecting the due-process rights of criminal defendants, the

corpus delicti rule is supported by few practical or social-

policy considerations. This court sees little reason to apply

the rule with a dogmatic vengeance.

In considering the minimal requirements of Maranda

and in evaluating the evidence in light of the ordinary

customs of our times, we conclude that the prosecution did

produce some evidence tending to corroborate the material

elements of aggravated robbery.

This proposition of law z not well taken.

Taking the remaining propositions of law in their

numerical sequence, we find in proposition of law No, 1

the claim that the trial court erred in “allow[ing] the prose-

eutor to receive a copy of a psychiatric examination prior

to the trial and conviction of the defendant.”

After the defendant entered a not guilty plea, the trial

court ordered a psychiatric evaluation of the defendant.

During the examination, the defendant made several in-

criminating statements relating to his participation in the

robbery and murder. A copy of this report was then given

to the prosecutor.

Although the record is not clear, the trial court ap-

parently ordered the examination to determine whether the

defendant was competent to stand trial. Under R. C. 2945.37,

such an order was proper. However, the court erred, the

defendant alleges, in allowing the prosecution to receive

a copy of the report before the defendant was tried and

convicted. The defendant claims the error to have been

prejudicial. At trial, testimony was offered by the state

from detective Cross that Edwards slept in a basement of

Edgewood Home Apartments. The testimony, the defend-

ant claims, was critically important in proving that Ed-

wards was known to sleep where the wallet was found. De-

fendant further insists that detective Cross obtained this

information from the psychiatric report. Without such

testimony, the defendant continues, there would have been

49 Ohio St. 2d] STATE v. EDWARDS. 37.

Opinion, per O’NeILt, C. J.

insufficient evidence to render the defendant’s confession

admissible, And without the confession, he concludes, there

was insufficient evidence to support the jury’s verdict.

The state, in rebuttal, argues that the psychiatric re-

port contained no evidence that had not already been un-

covered by the police. The officers were aware of Gary

Hendon, the custodian who found the billfold. The report,

moreover, was never referred to in the presence of the

jury or introduced in evidence.

The issue is whether the disclosure of the psychiatric

report to the prosecutor, prior to trial, violated the defend.

ant’s right against self-incrimination. Although this claim

presents significant constitutional questions, it need not be

addressed by this court. In light of the facts of the case,

defendant’s argument is significant only if one assumes that

without Cross’ testimony, the defendaint’s confession would

be inadmissible. Having arrived at the contrary conclusion

in the analysis of the appellant’s fourth proposition of law,

the court need not resolve this argument.

This proposition of law is rejected.

ITI.

In his second proposition of law, appellant complains

that “[t]he mere reading of the Miranda rights to the

accused who purports to understand them and then pur-

portedly waives his right to remain silent is not in com-

pliance with the law.” ;

On January 9, 1975, the defendant was arrested at 5:30

p.m. From approximately that time to 3:00 a. m. on Janu-

ary 10, 1975, the defendant was kept in interrogation room

No. 9. During that period he was interrogated four

times; three of the four interrogations were tape-recorded.

The appellant challenges the admissibility of the coufes-

sions obtained during these interrogation periods. Since

the original statement given to the police established his

participation in the crime, only the circumstances of this

confession are legally significant. If the confession was

voluntarily made, then the legality of the later statements,

obtained at 8:20 p. m. and 10:25 p. m., respectively, is not

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38 JANUARY TERM, 1976. [49 Ohio St. 2d

Opinion, per O’Nert1, C. J. :

important. If the subsequent confessions were Iegally ob-

tained, then their admission relates to events already

proven, If the subsequent confessions were illegally ac-

quired, in light of the lawfulness of the original statement

given to the police shortly after the appellant’s arrest, then

their admission constitutes harmless error. Farrington v.

California (1969), 395 U. S. 250; Chapman v.. California

(1967), 386 U. S. 18. ; |

Having been in custody for about an hour following

his arrest, on January 9, 1975, the defendant was interro-

gated by detective Cross. Before questioning the defend-

ant, Cross read to the defendant his Miranda warnings.

After having read each right aloud, Cross asked tie defend-

ant if he understood. The defendant said “yes.” After

reading the Jliranda warnings, Cross told the defendant

that he could stop talking to either himself (Cross) or de-

tective Goodwell any time he wished. At approximately

6:30 p. m., the defendant gave an oral, unrecorded confes-

sion. =

In Miranda vy. Arizona (1966), 384 U. S. 436, the Su-

preme Court held that the prosceution has the burden of

proving the following facts in order for a statement made

by an accused at the time of custodial interrogation to be

admitted in evidence: (1) the accused, prior to any inter-

rogation, was given the Miranda warnings; (2) at the re-

ceipt of the warnings, or thereafter, the accused made “an

express statement” that he desired to waive his Miranda

constitutional rights; (3) the accused effected a voluntary,

knowing, and intelligent waiver of those rights.

There are no presumptions to aid the prosecution in

its attempt to prove a valid waiver of the right to counsel

and the privilege of silence. At various points-im the ma-

jority opinion in Miranda, the court seizes upon specific

factual criteria which it emphatically indicates will not sup-

port a presumption of waiver. These criteria are: (1)

a waiver will not be presumed simply from the silence of

the accused after the warnings are given; (2) a waiver will

not he presumed simply from the fact that a confession was

49 Ohio St. 2d] STATE v. EDWARDS. 39

Opinion, per O’NeI.L, C. J.

in fact eventually obtained; (3) a waiver will not be pre-

sumed if the individual answers some questions or gives

some information on his own initiative prior to invoking his

right to remain silent when interrogated; (4) a waiver will

not be presumed if the accused fails to ask for the assist-

ance of an attorney; and (5) a waiver will not be presumed

from a silent record.

The defendant argues his confession is inadmissible

for basically the following three reasons: (1) The Miranda

warnings were inadequate in that. Cross never explicitly

asked the defendant whether he wanted an attorney; (2)

the waiver was not intelligently made because defendant

had a low IQ and could only read on a second-grade level;

and (3) the waiver was not voluntarily made in that officer

Goodwell “induced” the defendant to confess by telling

the defendant the court would be lenient on him, if the

defendant told the truth.

Miranda does not require a police officer to ask the

defendant whether he wants an attorney. He need only in-

form the accused, as was done here, that the accused has

a right to a retained or appointed attorney. Moreover, the

defendant was 21 years old, a high school graduate, and

able to understand the English language. In being asked

whether he understood his rights, he responded affirmative-

ly. He never asked for an attorney.

The only significant issue is whether the defendant’s

waiver was voluntary in light of Cross’ “inducement.”

Miranda specifically holds that “any evidence” show-

ing that the accused was “cajoled” will render the waiver

decision involuntary. Miranda v. Arizona, supra (384 U.S.

436), at page 476. “Cajolery,” in this context, may be de-

fined as the act of persuading or deceiving the accused, with

false promises or information, into relinquishing his rights

-and responding to questions posed by law enforcement of-

| ficers. |

| In demanding that a confession be voluntary, Miranda

was requiring nothing new. The Supreme Court of the

United States had established such to be the Jaw in Bram

(5)

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—_———> — te

(COPY.

STATE OF OHIO ) IN THE COURT OF APPEALS

) ss: NINTH JUDICIAL DISTRICT

)

SUMMIT COUNTY (September Term, 1975)

STATE OF OHIO, C. A. No.7784

Plaintiff-Appellee

APPEAL FROM JUDGMENT

ENTERED IN THE COURT

OF COMMON PLEAS OF

SUMMIT COUNTY, OHIO

CASE NO. 75 1 52

Ve

FLOYD EDWARDS

Nee Se SS SY ee Se 8

Defendant~-Appellant

DECISION AND JOURNAL ENTRY

Dated: November 26, 1975

This cause was heard October 16, 1975, upon the record

in the trial court, including the transcript of proceedings,

and the briefs. It was argued by counsel for the parties

and submitted to the court. Each assignment of error was

reviewed by the -court and the following disposition made;

DOYLE, J.

The defendant-appellant, Floyd Edwards, was sentenced

in the Court of Common Pleas of Summit County to death in

the electric chair and to a term of 7 to 25 years in the

penitentiary pursuant to his conviction by a jury of the

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crimes of aggravated murder and aggravated robbery. The

instant appeal by Edwards sceks a reversal of the conviction

and sentences. Errors are assigned which he claims are

prejudicial to his rights and justify his demands.

Evidence in the record establishes the following facts.

On December 28, 1974, Joseph Eshack, Jr., an Akron bustaves

an,was shot and killed at his place of business located at

223 Wooster Avenue, Akron, Ohio. He was found by Akron Police

lying with his face down in the aisle of his store room. His

business consisted of the purchase, rental and sale of used

tools and appliances.

On this date, Floyd Edwards, a menty~-ons year old

high school graduate, met with a friend named Stanford Harris

on Wooster Avenue and told him that he was going to rob

D, sept Eshack. Edwards asked him to participate in that

robbery and showed him a gun, Harris consented. Edwards

knew Eshack and Eshack knew Edwards ae of _— business

dealings. Edwards and Harris entered the store and soon

thereafter argued over the price of various tools scattered

over the floor. The last item talked about was a pair of

wire cutters and as Eshack bent over to pick them up,

Edwards pulled a gun from his clothing and demanded Eshack's

money. ‘Edwards grabbed Eshack's arm and a struggle ensued.

(11)

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The gun in Edward's hand was then engaged by him resulting

in a bullet being fired into the rear of Eshack's head

slightly above the hair line at the neck. The bullet killed

the victim and he was left on the floor when sometime later

his body was found by an Akron policeman,

After the shot was fired the victim's wallet was taken.

——— — —— —

a

It contained some identification papers and $65. This money

“----

was divided between Edwards and Harris. The wallet was taken

and later discarded in the basement of an apartment house.

Edwards’ presence in the apartment house after the shooting

"email

was established e_ evidence,

On January 9, 1975, Edwards was arrested following a

thorough investigation by the Akron Police. He told the

police of his participation in the robbery and his recollec-

tion of the killing. He also told the police where they

could find the gun. It was later found to be-the ou deich

fired the bullet found by the coroner in the victim's head. -

In due course, the defendant was indicted by a Summit

County grand jury. Ina first count it was charged that he

“did commit the crime of AGGRAVATED MURDER in

that he, did purposely cause the death of

Joseph Eshack, Jr., while said Defendant was

committing, or attempting to commit or fleeing

immediately after committing or attempting to

commit aggravated robbery (2911.01), said

death being contrary to Ohio Revised Code

2903.01(B), and further said cause of death

(12)

Gy CIE EG A) OE PP LOR EDI SERS. pee TS

being done under aggravating circumstances,

to-wit:

Specification (1) to Count (1) 2929.04(A)3

The Grand Jurors further find and specify that

said offense was committed for the purpose of

escaping detection, apprehension, trial, or

punishment for another offense committed by

said Defendant, to-wit: Aggravated Robbery

2911.01.

Specification (2) to Count (1) 2929.,04(A)7

The Grand Jurors further find and specify that

the offense presented aboye, the killing of

Joseph Eshack, Jr., was committed while the

said Defendant was committing, attempting to

commit, or fleeing immediately after

committing or attempting to commit aggravated

- robbery, 2911.01. "

A second count in the indictment states:

"And the Grand Jurors of the State of Ohio, within and

for the body of the County of Summit aforesaid, on

their oaths in the name and by the authority of

the State of Ohio, DO FURTHER FIND AND PRESENT,

That FLOYD EDWARDS, at the County of Summit and

State of Ohio, on or about the 28th day of

December, A.D., 1974, at the County of Summit, did

‘commit Aggravated Robbery, to-wit: that said

FLOYD EDWARDS while he was attempting to commit

or was committing a theft offense as defined in

2913.01 of Ohio Revised Code, to-wit: said

Defendant FLOYD EDWARDS, did take and deprive

Joseph Eshack, Jr., of certain United States

Currency in the amount of SIXTY-FIVE DOLLARS

($65.00); or while fleeing immediately after

such attempt or offense did inflict serious

physical harm to another, ie., he did kill Joseph

Eshack, Jr.,in the City of Akron, County of

Summit and State of Ohio, with a deadly weapon,

to-wit: a Pistol, said offense of Aggravated

Robbery in violation of Ohio Revised Code

Section 2911.01(A)(1) and/or (2), contrary to

the form of the statute in such case made and (13)

provided and against the peace and dignity of

the State of Ohio," ;

Upon the submission of the case to the jury, the

defendant Edwards, was found guilty of aggravated murder, not

guilty of specification l(supra) but guilty of specification

2 (supra). The jury also found him guilty of aggravated

robbery as charged in the second count in the indictment

(supra).

In this appeal seeking a reversal of the judgment

entered by the trial court, there are twelve assignments of

error. We have examined the voluminous record and will pass

on the claimed errors in the light of the record before us.

Assignment of Error No. l

"The court erred in allowing the prosecutor

to receive a copy of Dr. Elliot Migdal's

psychiatric examination prior to the trial and

conviction of the defendant,"

After the arraignment of the accused, where a plea of

not guilty was made, the court ordered a psychiatric

evaluation of the defendant. Dr. Elliot Migdal was selected

by the court and he thereupon cxamined the accused. In the

process of the examination, the subject made a number of

statements relating to his participation in the robbery and

murder. A report of the examination was made by the doctor

~~ —

to the court. The defense counsel objected to the entire

enamel (14)

STE Te ae ae TESTS -P -ewreme-

"1 st ae ; pg ee Pt 2G er ts ne

ate

procedure and specifically asked that the report not be made

' available to the prosecution.

It appears from the court's letter to the doctor that he

based the authority for such an examination before trial on

R.C. 2929.03(D) and R.C. 2947.06. If these code sections

—_— —-—

were the court's authority for the examination, the court was

ei error. At any rate, the doctor's findings were not

offered in the trial and were not before the jury. Further-

more, the accused's statements to the doctor were not at

variance with similar statements made to the police by the

defendant.

While we hold this procedure of the trial court

erroneous, as no claim had been made that the defendant lacked

mental capacity to stand trial, we are of the opinion that it

alls within the rules of Ohio Criminal Procedure, stated in —

Rule 52(A) as follows:

"Harmless Error. Any error, defect,

irregularity, or variance which does not

affect substantial rights shall be disregarded."

Compare, Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d

705 (1967). We find from the record that the substantial

rights of the defendant were not affected.

Assignment of Error No. 2

"The court erred in not suppressing statements

made by the defendant to the Akron Police."

(15)

40 JANUARY TERM, 1976. [49 Ohio St: 24

Opinion, per O'Neius, ©. J,

v. United States ( 1897), 168 U. 8, 532, 542, as follows: ' «i

ited © | confession, in order to be admissible, must

be free and voluntary; that is, must not be extracted by any

sort of threats or violence, nor obtained by any direét or

implied promises, however slight, nor by exertion of any

improper influence * * *’» oe

Although the language of Bram is categorical, it is

doubtful whether the courts today would interpret the

Miranda recuirements 80 that ‘any promise, “however

slight” which induces a confession would rendor the confos-

sion involuntary and honce inadmissible. Thus in United

States v. Ferrara (C. A. 2, 1967), 377 F. 24 16, 17, certiorari

denied, 389 U. §, 908, the Court of Appeals stated:

“* ** The Bram opinion cites with approval the state.

ment in an English textbook that a confession is not volun.

tary if ‘obtained by any direct or implied promises, how:

ever slight.’ That language has never been applied with

the wooden literalness urged upon us by appellant. The

Supreme Court has consistently made clear that the test of

voluntariness is whether an examination of all the circum.

stances discloses that the conduct of ‘law enforcement of.

ficials was such as to overbear [the defendant’s) will to

resist and bring about confessions not frecly sclf-doter-

mined *e eo? ” oy °) ne P P

“The ‘wooden’ application of Bram was also rejected in

United States y, Frazier, 434 I, 24 994 (Sth Cir, 1970), In

Frazier, an F. B. I. agent told defendant. ‘that if he co-

operated with them his cooperation would be made known

to the United States Attorney, that there might be some

concideration given by the United States Attorney but that

the agents could make no promises.’ The court held such

& promise, standing alone, insnfficient to render the con.

fession involuntary.” United States v. Arcediano (1974),

371 I’. Supp. 457, 469, : '

In deciding whether the defendant's confession ix this

case was involuntarily induced, the court should consider

the totality of the circumstances, including the age, mental.

ity, and prior criminal experience of the accused ; the length,

49 Ohio St. 2d] STATE v. EDWARDS. 41

| Opinion, per O’Nett, ©. J.

intensity, and frequency of interrogation; the oxistence of

physical deprivation or mistreatment; and the existence of

threat or inducement. Brown v. United States (C. A. 10,

1966), 356 F. 2d 280, 282. Under the “totality of cireum-

stances” standard, the presence of promises does not, as

a matter of law, render a confession involuntary. In

United States. v. Stegmaier (1975), 397 F*. Supp. 611, an

F. B. I. agent’s promise that the defendant’s “cooperation”

would be considered in the disposition of the defendant’s

case did not render the subsequent confession involuntary.

In United States v. Barfield mae 607 I. 2d 53, the court

held that the fact that a 16-year-old defendant was told by

an F. B. I. agent that it would be in “his best interest” to

tell the “real story,” and that telling a lic might result

in his being left “holding the bag,” did not foreclose, as a

matter of law, the voluntariness of the confession. In United

States v. White (C. A. 5, 1974), 493 F. 2d 3, the court hold

that in an otherwise noncoercive atmosphere, an isolated

statement made to an accused that his confession would be

“helpful,” did not, standing alone, invalidate an otherwise

legal confession.

‘The trial court did not find officer Goodwell’s statement

to be of such a nature as to render involuntary the appel-

jant’s confession. We believe this to be correct. T'o promise

that the court will be “lenient” if one tells the truth is

not unlike an admonition that it would be in one’s “best

interest” to tell the truth and not get caught “holding the

bag.” Barfield, supra. The accused in the instant case had

been given his rights and was of majority age. ‘The defend.

ant, at the time of his first confession, had beon in custody

for ‘approximately one hour. The atmosphere was non-

coorcive and the questioning had not been continuous. There

was no physical deprivation or mistreatment. ‘he record

‘supports the finding that tho defendant voluntarily waived

his constitutional rights.

Proposition of law No. 3 reads: “Cyjiminal Rule 16(B)

{1](e) .is a mandatory rulo which requires strict compli-

(6)

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42 JANUARY TERM, 1976. [49 Ohio St: 2d

Opinion, per O’Nettt, C. J.

ance. Rule 16(E)(3) applies only to the introduction of

physical evidence. The trial court abuses its discretion if it

permits a witness to testify whose name was not on the wit-

ness list by mere neglect.’” Appellant complains that the

trial court erred in permitting a state’s witnoss to testify

when the state, in violation of an earlicr court order, fail-

ed to furnish the name and address of the witness prior to

trial. |

Crim. R. 16(E)(3) provides for the regulation of dis-

covery, und it permits the trial court to exercise its dis-

cretion in selecting the proper and just procedure to be

followed when a party fails to comply with a discovery

order. Crim. R. 16(B)(1)(e) provides for the furnishing

of the names and addresses of all witnesses the prosecu-

tion intends to call at trial. In the instant case, the prose-

cution called officer Ronald Davis whose name did not ap-

pear on the list of names furnished by the prosecution to

the defendant pursuant to a motion filed by the defendant

requesting the names and addresses of all witnesses, Over

objection by the defendant, the court permitted Davis to

testify as to the position in which he found the decedent

and tho location of a shell casing, and to identify stato’s

exhibits numbered 4 through 10. The issue is whether the

trial court abused its discretion in admitting the testimony.

Because trial courts aro given much latitude in super-

vising pretrial discovery, we conclude that the lower court

did not abuse its discretion in allowing Davis to testify.

From the record, it appears the prosecutor’s mistake was

inadvertent. Moreover, there is little reason to believe the

appellant was ill-prepared and surprised by Davis’ testi-

mony. Although the witness list was incomplete, it did in-

clude the name of Mack Newberry, the partner of Ronald

Davis, who accompanied him on his tour of duty. It was

the intention of the state to call Nowberry as its first wit-

ness, but a heart attack the night before trial precluded

his appearance, and Davis was called in his stead. More-

over, much of Davis’ testimony was identical to that of

the coroner’s investigator, Charles Elliot. Furthermore,

49 Ohio St. 2d] STATE v, EDWARDS. 43

Opinion, per O'Net, C. J,

although the trial court overruled defense eounsel’s ob-

jection to Davis’ testimony in its entirety, defense counsel

vould have, but did not, move for a continiiicd\in order

to havo sufficient time in which to prepare for cro’s-exam-

ination. In the absence of such a motion, tho trial Gourt

properly concluded that defense counsel was prepared to

go forward at that time. The trial court had, pursuant to

Crim, R. 16()(3), the discretionary power to make such

a dete?mination. |

This proposition of law A, not well taken,

In his fifth proposition of law, appellant suggests that

the trial court crred in pormitting in evidence the tape re-

cording of the defendant’s confession with reference to

the killing of the decedent. Appellant asserts that “(t]he

total recorded confession by the defendant was a confes-

sion of aggravated robbery and aggravated murder and

that the statement of both offenses could not be separated,”

As advanced by the appellant’s fourth proposition of law,

the statement with reference to the robbory should not

have been permitted for the reason that the state failed to

prove any facts, other than by the defendant's confession,

that a robbery was committed. Hence, since the two state-

monts could not be separated, both should be prohibited

from being introduced in evidence.

In appraising this proposition, this court is of the

opinion that the tape-recorded confessions were admissi-

ble in evidence for the reasons advanced in our ruling on

proposition of law No. 4.

VI.

The next proposition of law advanced by appellant, No.

6, proposes that the Criminal Rules do not preclude the de-

fondant’s counsel, in final argument, from commenting to

the jury that the stato failed to call certain witnosses, when

the state was responsible for bringing their names to the

attention of the jury, after the court allowed the state to

introduco hearsay testimony over objection.

Throughout the testimony of detective Croxs, the state

(7)

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44 JANUARY TERM, 1976. [49 Ohio St.'2d

Opinion, por O’Newt, C. J.

introduced hearsay testimony of Haywood Manning: and

Butch DeBruce. The state brought the names of: these

people to the attention of the jury. The court, however,

refused to allow defense counsel to mention the name

Manning in final argument, In so doing, the appetant ar-

gues, the lower court erred.

Aside from Edward’s confession and the statements

attributed to DeBruce, Manning’s testimony and credibil-

ity were relevant in connecting Edwards with the murder

weapon, Since Manning was never called to tho stand, the

defendant argues that he should have boon able to men-

tion such fact to the jury. Relying on Crim. R. 16(B) (4),

the court made a limited ruling. It held that the defense

could give any number of arguments, but could not im-

peach Manning’s statements by mentioning the prcsees-

tor’s failure to call him as a witness. ' ‘ye te teary Fags

Crim. R. 16(B)(4) provides: . oT

“The fact that a witness’ name is on a list furnished

under subsection (B)(1)(b) and (f), and that such wit-

ness is not called shall not be commented upon at trial.’’ : '

Considering the purpose of the rule and the availabil-

ity of Manning as a witness throughout the trial, we bo-

lieve the trial court was correct in ruling that the defense

could not argue before the jury, ‘‘{WJhere.is Mr, Man-

ning?’’ A party is not required to use every prospective

witness it may have. Once the prosecution has established

its case, it may rest at the point it chooses, The rule effec-

tively precludes the defense raising doubt or innuendo

about an uncalled witness, and what he might say. The rec,

ord shows, incidentally, that Manning was interviewed by

defense counsel in the a stages of the trial."

Proposition of law No. 7 reads: ‘Ohio Revised Code

2911.01 is unconstitutional for the reason that it is ambigu-

ous, vague and docs not specifically recite an offense.”’ ‘ '

Tho lower court properly held that R. O. 2911.01,

when rend in light of R. C. 2913.02, is not ambiguous or

49 Ohio St. 2d] STATE v. EDWARDS. 45

Opinion, per O’Neru, C. J.

VIII, '

In proposition of law No, 8, applicant pleads error as

follows:

‘It is prejudicial error to instruct the jury that the

purpose to kill must be inferred from the use of a deadly

weapon,’’ '

hile instructing the jury about the law, the trial

court said the following:

“It must be established in this case that at the time

in question thoro was present in the mind of the dofendant

& spocific intent to kill Joseph Bshack, Jr.

‘Now, purpose is the decision of the mind to do an

act with a conscious objective of producing a specific re-

sult. 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 another or

indicates it by his conduct. The purpose with which a per-

son does an act'is determined from the manner in which it

is done, the means and method and the Weapon used, and all

other facts and circumstances in evidence.

‘‘If a wound is inflicted upon a person with a deadly

weapon in a manner calculated to destroy life, the purpose

to kill must be inferred from the use of said weapon. Both

an inference of malice may be inferred from the facts and

circumstances of an unlawful killing where a deadly weap.

on is used.’’ (Emphasis added.)

The defendant argues that the use of a dangerous

weapon is not conclusive proof of an intent to kill, and that

the jury must bo free to decide whether the actual intent

was to wound or disable, or whether the killing was pure-

ly accidental.

In reading the court’s instructions to the jury in their

entirety, this court does not believe the abovo instruction

to have constituted prejudicial error, Having made such a

decision, the court does not need to consider the signifi-

cance of the defendant’s failure to object to the chargo

or request a correction.

(8)

ee ~

46 JANUARY TERM, 1976. [49 Ohio St. 2d)

Opinion, per O’Nei4, C. J.

This proposition of law is without merit.

x °

As his proposition of law No. 9, appellant contends’

that ‘‘({t]he Ohio statutes with reference to aggravated

murder, a enpital offense, and the related sections deal-,

ing with death in the electric chair are unconstitutional :

for the reason that the mitigating circumstances of mental

deficiency lias no definition in law, is vague, ambiguous ,

and impossiblo to ascertain with any degree of uniform-

ity. tf

This argument has already been considered and re-.,

jected by this court in State v. Black (1976), 48 Ohio St.

‘2d 270, —— N. E, 2d ——. "

x.

Proposition of law No. 10 reads: 4

‘*The Ohio statute with reference to aggravated mur-

der and related sections dealing with death in the electric |

chair are unconstitutional for the reason that they do not |

assure the defendant the equal protection of the law.’’

This argument is without merit. State v. Bayless, i

supra.

XI

As his proposition of law No. 11, appellant pleads er-

ror as follows: “It is reversible error to request a psychi-

atrist to make the ultimate legal conclusion as to whether .

the offense was primarily the product of the offender’s ,

mental deficiency.”

In a letter to Dr. Elliot Migdal, contained in the ree-

ord, the court instructed him that the legal definition of ;

mental deficiency is “whether or not the offense was pri-:

marily the product of the offender’s (Floyd Edwards) psy-

chosis or mental deficiency, though such condition is insuf- '

ficient to establish the defense of insanity.” The letter mere-

ly repeated the statutory language regarding mitigation.

The psychiatrist did not decide ultimate legal issue of miti-

gation. Ile merely provided information in that regard.

The trial court was not restricted by the doctor’s testi-

mony, nor was he constrained to accept it. The trial court,

49 Ohio St. 2d} STATE v. EDWARDS. 47

Opinion, per O’Neitt, C. J.

not the psychiatrist, made the determination that no miti-

gating circumstances existed.

This proposition of law is not well taken.

o* xil

In his final proposition of law, appellant pleads error

as follows:

‘*When the medical testimony is that the defendant,

because of his mentality, could not be expected to form

the same good judgment as a normal person, especially

under stress, a finding that the offense was not the product

of the accused’s mental deficiency is manifestly against the

weight of the evidence.’’

There is evidence indicating that the defendant was

below average in intellis “nce, However, expert testimony

indicated that he was ne entally deficient or retarded.

He wasagradue if o>: the local high schools. Despite

this fact, thei 1s evide ., “at he was educationally de-

ficient. Hower, educational deficiency does not equate

with mental deficiency,

In criminal appeals, this court will not retry issues of

fact. In the circumstances at hand, we confine our con-

sideration to a determination of whether there is sufficient

substantial evidence to support the verdict rendered. From

the evidence before it, the trial court had more than suf-

ficient evidence to support its judgment. Slate v. Cliff

(1969), 19 Ohio St. 2d 31, 249 N. B. 2d 993.

his proposition of law is not well taken.

Accordingly, for the reasons stated, the judgment of

the Court of Appeals is affirmed.

Judgment affirmed.

Hirrsert, Corrican, Stzrn, Ceueprezze, W. Brows

and P. Brown, JJ., concur.

(9)

me za VEX Pt eB ek 0

3 By BRAIN

Subsequent to the defendant's arrest, he was questioned

by the various officers on duty. His replies and statements

establish beyond any doubt that he carried out his planned

robbery and in the process thereof intentionally shot his.

——

At all times he was advised of his

helpless victim.

constitutional rights and was repeatedly given the so-called

Miranda warning. Miranda v. Arizona,384 U.S. 436, 16 L. Ed.

ND

24 694 (1966). In most instances, the warnings were read by

the interrogators from a memorandum card carried for the

express purpose of giving the proper warning. After all of

the warnings were given, he was asked if, understanding his

rights, he wished to talk about the robbery and homicide.

His answers were "yes." He did not ask for an attorney.. He

—_—

—

said that he was

established this

It is urged

a highschool graduate (school records

fact) and that he was 21 years of age.

that defendant's rights were jeopardized

when he was interrogated for 9-1/2 hours. While he was in

the custody of the police for that length of time, the

interrogation was not continuous. The periods of interroga-

tion were not lengthy. The first statement by the defendant

of his participation in the crime was made less than one

hour after the initial interrogation began. See, Miranda

v. Arizona, supra, on this critical period of time.

(16)

| aa

We find no evidence in this record of physical or

psychological coercion, To the contrary, the record reflects

voluntary statements relating to the defendant's robbery and

shooting of the victim, Eshack. These statements all come

well within the Miranda tests and those of State v. Kassow,

28 Ohio St. 2d 141 (1971). The totality of circumstances

onvince this court that the confession to the crime was

———— eee

-<-c°o=-**

—Vyoluntarily made following a knowing and voluntary waiver of

— —-_=-

———— ed Sokeineaiiiad =

-_—-. ee

constitutional rights. Fraizer v. Cupp, 394 U.S. 731, 22 L.

Ed. 2d 684 (1969); Schneck loth v. Bustamonte, 412 U.S. 218,

36 L. Ed 2d 854 (1973). |

We find against the defendant on his second assignment

of error that "the court erred in not suppressing statements

iy by the defendant to the Akron Police."

Assignment of Error No. 3

"The court erred in permitting police officer

Ron Davis as a witness for the reason that

under the Rules of Criminal Procedure the

prosecution failed to furnish the name of said

witness prior to trial (Rule 16-B-E)."

Ww le? a , ~ ei eB ,

» By (inadvertence, the prosecution failed to include the

oat —snee

name of Patrolman Ron Davis on the “discovery list" made

available to the defense. Included in the list, however, was

the name of (Mack Newberry, the partner of Ron Davis, and

who accompanied him on his tour of duty. It was the intention

ee (17) |

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of the State to call Newberry as its first witness, but a

X serious heart attack the night before the trial precluded his

v a

N U" appearance as a witness and Davis was thereupon called in his

Val

& |. stead,

\ The testimony of Ron Davis was not crucial to the case,

s At Other witnesses testified to essentially the same series of

ver we cts. Under no possible theory can this testimony be said

ig ae to have prejudiced the rights of the accused; and furthermore,

fe

“

‘ this pictures a circumstance in the trial of criminal cases

when Crim, R. 16(E)(3) may be brought into action. The rule

permits the court, in the administration of justice, to

TT

——+eo ae -—-

exercise its discretion in the allowance or disallowance of

such testimony.

~~

Q In this case, we find the claimed error non prejudicial

and find that the court did not abuse its discretion in

allowing the officer to testify.

Assignment of Error No. 4

"The court erred in allowing into evidence the

defendant's confession that he had robbed the

decedent for the reason that there was no other

evidence of the robbery and that as a result

thereof the corpus delecti or robbery was only

proven by the defendant's confession."

The law is well established that an extra-judicial

confession alone cannot be used to prove the corpus delecti,

in the instant case, aggravated robbery and murder. However,

(18)

evidence in the case, either positive or circumstantial, in

making out the corpus delecti. In this case, there is only

it may be taken into consideration in connection with other

Ke oS _ AY

————er ©

-

However, the victim's wallet without money was found in the

ee of an apartment house in a place where the accused

was observed to have been shortly after the killing.

In our opinion the extensive corroborative facts, as

shown by this circumstantial evidence tending to establish

the corpus delecti, are sufficient to render the confession

admissible and when these corroborating facts pointing to

robbery are ‘considered with the confession, the evidence we

ina is sufficient to establish the completion of the crime

as it is charged in the indictment, i.e. aggravated murder

and aggravated robbery.

Assignment of Error No. 5

"The court erred in permitting into evidence

the tape recording of the defendant's

confession with reference to the killing of

the decedent."

The defendant asserts in urging this assignment of error

that "the total confession by the defendant was a confession

of aggravated robbery and aggravated murder and that the

statement of both offenses could not be separated." As

(19)

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“wallet with money was found on the body of the victim, yt" eres

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advanced by assignment of error number 4, the statement with

reference to the robbery should not have been permitted for

the reason that the State failed to prove any facts, other

than by the defendant's confession, that a robbery was

committed, Hence, since the two statements could not be

: separated, both should be prohibited from being introduced

into evidence."

In appraising this assignment of error, we are of the

opinion, and so determine, that the tape recorded confessions

were admissible in evidence for the reasons advanced in our

ruling on assignment of error number 4. :

Assignment of Error No. 6

"The court erred in not allowing defendant's

counsel in final argument to the jury to

comment that the State failed to call two

witnesses, Haywood Manning and Anita Watson,

whose names frequently were mentioned in the

trial by the State."

The following mandate appears under Crim. R. 16(C) (3):

"Witness list; no comment. The fact that

a witness’ name is on a list furnished under

subsection (C)(1)(c), and that the witness

is not called shall not be commented upon at

the trial."

Within the terms of this Rule, there is found the

court's authority for ruling as it did, We find no

prejudicial error here. If the defendant desired testimony

(20)

» 8 «

from Manning or Watson, he could have secured it by subpoena

and then commented upon it to the jury.

Assignment of Error No. 7

"The court erred in not dismissing Count

#2 charging the defendant with violating

Ohio Revised Code 2911.01 for the reason that

2911.01 is ambiguous, vague and does not

specifically recite an offense."

@ The section of the Revised Code here under attack,

R.C. 2911.01, reads: | ;

"Ageravated 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

9 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 aggravated robbery, a felony of the first

degree."

Theft offense is defined in R.C. 2913.01(K), inter alia,

as a violation of R.C. 2913.02. This section provides:

"Theft.

"(A) No person, with purpose to deprive

the owner of property or services, shall

knowingly obtain or exert control over either;

(21)

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COO TTA ELS IS Ce 3 ee eS mq ee AE rk hotel

e 139 «

"(1) Without the consent of the owner or

person authorized to give consent;

Week

"(4) By threat,

eS 4 i A)

It is obvious to this court that R.C. 2911.01 when

read in the light of R.C. 2913.02 gives to a defendant, and

to this defendant in particular, the elements which must be

established to prove the crime with which he is charged,

In the trial of the instant case, it was established by

competent evidence that the defendant deprived the victin,

Eshack, of his wallet and money without his consent; that

he did so with a deadly weapon, the discharge of which

caused death. The statute here under attack covers this

entire series of events and cannot be said to be "ambiguous"

and "vague" and to not "specifically recite an offense."

Furthermore, if the defendant was uncertain as to the crime

with which he was charged, he had ample opportunity to

request a bill of particulars by virtue of Crim. R. 7(B).

This he did not do.

Assignment of Error #8

"The court erred in its charge to the jury

when it instructed the jury that the purpose

to kill must (emphasis added) be inferred from

the use of said weapon."

(22) ’

=

This alleged error misstates the charge of the court.

The court's charge was correctly given in the following

terms;

"The purpose with which a person does an

act is known only to himself unless he expresses

it to another or indicates it by his conduct.

The purpose with which a person does an act is

determined from the manner in which it is done,

Q the means and method and the weapon used, and

all other facts and circumstances in evidence,

"Tf a wound is inflicted upon a person with

a deadly weapon in a manner calculated to destroy

life, the purpose to kill must be inferred from

the use of said weapon. Both an inference of

intent to kill and an inference of malice may

be inferred from the facts and circumstances

of an unlawful killing where a deadly weapon

is used,"

While this alleged error is not well taken as a matter

of law, it will be further observed that the defendant did

O

not object to the charge or request a correction. Crim. R.

30 provides in pertinent part:

Werke

"No party may assign as error any portion of

the charge or omission therefrom unless he

objects thereto before the jury retires to

consider its verdict, stating specifically the

matter to which he objects and the grounds

of his objection. Opportunity shall be given

to make the objection out of the hearing of

the jury."

Assignment of Error No. 8 is overruled,

~ (23)

Se a = Sar EY

e 19 «

ro. Assignment of Error No. 9

"The Ohio statutes with reference to aggravated

murder, a capital offence (sic) and the related

sections dealing with death in the electric

chair are unconstitutional for the reason that

the mitigating circumstance of mental deficiency

has no definition in law, is vague, ambiguous

and impossible to ascertain with any degree

of uniformity."

The defendant's challenge in this assignment of error

relates to R.C. 2929.04(B)(3) and is titled "Criteria for

imposing death or imprisonment for a capital offense." Under

this section of the Code, the death sentence is precluded

if:

“rhe offense was primarily the product

of the offender's psychosis or mental

deficiency, though such condition is insufficient

to establish thedefense of insanity."

The jury returned its verdict of guilty and thereafter

the trial judge conducted a formal hearing on the question

of whether the offense was committed primarily as the result

of the offender's "psychosis or mental deficiency."

The finding of the trial court that the defendant did

not fall within the class of persons excused from capital

punishment under the provisions of the code was not something

that fell within the court's discretion. It was a finding

based upon evidence and we find that it amply sustained the

(24)

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=

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court's ruling. | Compare, State v. Leigh, 31 Ohio St. 2d

97 (1972).

The defendant argues that the language of the statute

establishing criteria for the imposition of the death

penalty is unconsitutional in that "mental deficiency has

no definition in law, is vague, ambiguous and impossible to

ee with any degree of uniformity."

‘Tt is a well settled rule in this State that words in

common use will be construed in their ordinary acceptance and

significance and with a meaning commonly attributed to them.

A statute cannot be held void for uncertainty if any

reasonable and practical construction can be given to it.

A number of psychiatrists and psychologists testified at

Qe mitigation hearing following the jury verdict. A Dr.

Villaba, psychiatrist, referred to a manual of mental

disorders made by the American Psychiatric Association and

stated that the words “mental retardation" and "mental’

deficiency" are synonomous. The manual defines mental

retardation as follows:

"xx to subnormal general intellectual

functioning which originates during the

development period and is associated with

iinpairment of either learning and social

adjustment, or maturation, or both."

(25)

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A Dr. Migdall, psychiatrist, defined "mental deficiency"

as follows:

“k*k* the ability to learn with support and

also to be able to make somewhat adequate

adjustment to society."

All of the experts who testified equated mental

deficiency with mental retardation or an aspect of it.

Webster's Third Intemational Dictionary defines the terms

as follows:

"Deficient: lacking in some quality, faculty

or characteristic;

"Retarded: Slow or limited in intellectual

development, in emotional development,

or academic progress."

It appears to be proper legal reasoning to hold that a

person with a limited intellectual or emotional devaiene

Q lacks a quality or faculty; that it is fair to utilize the

definition in Section 5123.68 M or that of the American

Psychiatric Society. Both refer to subnormal intellectual

functioning, impairment or deficiencies in behavior or

social adjustment, R.C. 5123.68(M) stipulates under the

chapter of “hospitals for mentally ill and mentally retarded"

that "A ‘mentally retarded' person means a person having

significantly subaverage general intellectual functioning

existing concurrently with deficiencies in adoptive behavior,

manifested through the development period." The American

(26)

°° ear ~ re ate > Me. Re ceeg = 2 gee oer prem we Fr ae we Pers eS2 2 - : Se ae co wwe ee ~ ES OO OO POP IS 2 Pet a eae °° -

. . *% oo — » a ’ ° . — *. - ~* gt, ¢ a eo * .* . ‘ e<«

| . . . . ‘ . . . .

Psychiatric Society, supra.

We find that the code sections in controversy do not

contain the weakness claimed, but that to the contrary meet

the constitutional mandate and can be applied uniformly.

This assignment of error is overruled,

Assignment of Error No. 10

9 "The Ohio statute with reference to aggravated

murder and related sections dealing with death

in the electric chair are unconstitutional

for the reason that it does not assure the

equal protection of the laws."

i i i i i el i a i el

a ted

: The Supreme Court of the United States in Furman v.

Georgia, 408 U.S. 238, 33 L. Ed. 2d 346 (1972) is authority

| for the rule that the death penalty as imposed, within the

discretion of a jury, violates the United States Constitution

i “hth Amendinent) forbidding cruel and unusual punishment.

Following this decision, the Supreine Court of Ohio held

in State v. Leigh, supra, that under existing law the

death penalty was prohibitive. Soon thereafter, Ohio changed

its law relative to the imposition of the death penalty. At

the time of the trial herein, the statutes provided that the

jury determine the factual questions of whether the defendant

committed the murder and if he did whether he did it in a

Specific aggravated manner. The jury does not determine

the penalty. To satisfy the objection of the Supreme Court

(27)

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of.the United States a bifurcated procedure was created. Now

the penalty is determined by:the court at a mitigation hearing

after the jury has returned its verdict. R.C. 2929.03 and

R.C. 2929.04.

This court in the case of State v. Bayless, (No. 7513,

9th Dist. Ct. App., February 5, 1975), held that the new

statutory procedure adopted by the legislature following

State v. Leigh, supra, met all constitutional requirements

and as a consequence the imposition of the death penalty was

constitutionally sound, We approve the holding in the

Bayless case and in esplyios it here, we find this assignment

of error is not well taken and as a consequence we overrule

it.

Assignment of Error 11

"The court erred in its letter to Abdon

Villalba, and Elliot Migdal, psychiatrists,

with reference to the court's definition of

mental deficiency."

This assignment of error is not well taken. The court

made the ultimate decision on the question of mitigating

circumstances. The psychiatrists supplied evidence only

which, of course, was weighed by the court. We find no

error of a prejudicial character here.

(28)

Se.

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: Assignment of Error 12

"The court's finding that the defendant failed

| to prove that the offense of aggravated murder

was not the product of mental deficiency is

manifestly against the weight of the evidence,

There is evidence indicating that the defendant was

below the average in intellectual functioning. However,

expert evidence gives great weight to the fact he was

0... mentally deficient or retarded. He was a graduate of one

of the local high schools. Despite this fact, there is

i te eh be i >

evidence that he was educationally deficient. Educational

deficiency does not, however, equate with mental deficiency.

The evidence before the trial court was amply

i i te le

sufficient to sustain the court's judgment and no error can

judg

be assigned thereto.

ti tt

Q This case establishes a cruel and vicious murder

committed in the process of a willful and intentional

robbery. The State has proved the essential elements of the

statutory charge made in the indictment and has afforded

the defendant every constitutional and statutory right to

which he was entitled. There is no error of a prejudicial

character in the record before us. As a consequence, the

judgment must and hereby is affirmed in all respects.

The court finds that there were reasonable grounds for

(29)

o Mh «

this appeal.

It is ordered that a special mandate issue from this

court, directing the Court of Common Pleas to carry this

judgment into execution. A certified copy of this journal

entry shall constitute the mandate, pursuant to Rule 27 of

the Rules of Appellate Procedure.

Ten days from the date hereof, this document shall

constitute the journal entry of judgment, and it shall be

file stamped by the Clerk of the Court of Appeals, at which

time the period for review shall begin to run, Appellate

ee |

ae)

Rule 22(£).

Costs taxed to appella

Exceptions.

° Ase (“77

a We og “abi L2LAA

BRENNEMAN, P.J. and fresiding fudge “>

HARVEY, J. CONCUR. | for the Court -

(Doyle, J., retired Judge ot the Ninth District Court of

Appeals, and Harvey, J., retired Judge of the Court of

Common Pleas of Sumnit County, sitting by assignment

under authority of Article IV, Section 6.(C), Constitution).

APPEARANCES :

STEPHAN M. GABALAC, Swanit County Prosecutor, (Fred Zuch,

Asst. Prosecutor), City-County Safety Building, 53 East

Center Street, Akron, Ohio 44308, for Plaintiff-Appellece,

TED CHUPARKOFF, Attorney at Law, 501 East Exchange Street,

Akron, Ohio 44304 for Nefendant-Appellant.

(30) BEST COPY AVAILABLE

JANUARY Term 19_25

o"= or OF OHIO No. 75 1 52

FLOYD EDWARDS _ JOURNAL ENTRY

(COP’

THIS DAY, to-wit: The 2nd day of May, A.D., 1975,

upon due consideration of the Court, IT IS HEREBY ORDERED that this

Journal Entry be filed NUNC PRO TUNC to correct in part the fourth

(4th) paragraph of the Journal Entry dated April 30, 1975.

THEREUPON, IT IS THE SENTENCE OF THE LAW AND JUDGMENT

OF THE COURT that the said Defendant be taken hence by the Sheriff

to the Summit County Jail and there safely kept, and that within

Thirty (30) Days the said Defendant be conveyed by the Sheriff to

the CHILLICOTHE CORRECTIONAL INSTITUTE, at Chillicothe, Ohio, and

thereafter to be delivered to the Warden of the UTEEE ONEO

CORRECTIONAL FACILITY, at Lucasville, Ohio, and that he safely be

‘ kept there until the first day of September, A. D., 1975, on which |

_ Gay, within the enclosure, inside the walls of the said SOUTHERN

OHIO CORRECTIONAL FACILITY, prepared for that purpose, according to

lew, the said Defendant, FLOYD EDWARDS, shall be electrocuted by

the Warden of’ the said SOUTHERN OHIO CORRECTIONAL FACILITY, or in

case of the Warden's death or inability, or absence, by a Deputy

Warden of said Institute; that the said Warden or his duly authorized

Deputy, shall cause to pass through the body of the said -

FLOYD EDWARDS, a current of electricity of sufficient intensity to

cause death, and that the application of such current of electricity

shall be continued by said Warden of said Institute, or said Deputy

Warden, until the said Defendant,FLOYD EDWARDS, is dead, for punishment

of the crime of AGGRAVATED MURDER, with specification, Count one (1)

of the Indictment, Ohio Revised Code Section 2903.01(B), a special

felony.

, APPROVED: ;

May 2, 1975 V

Summlt County ss:

-* * .

THE STATZ OF OHIO \ COURT OF COMMON PLEAS

® JANUGAR¥ Term 19275._

THE STATE OF OHIO No__75_1 52

v3.

“_ ane | made “() P VY

THIS DAY, to-wit: The first day of May, A.D., 1975,

now comes the Prosecuting Attorney, by Assistant Prosecutor

FREDERIC L. ZUCH, on behalf of the State of Ohio, the defendant,

4 FLOYD EDWARDS, being in open Court with counsel, THEODORE

CHUPARKOFP, for further hearing in this matter.

THEREUPON, the Court inquired of the said Defendant if he

ha@ anything to say why judgment should not be pronounced gainst eel

him, regarding the charge of Aggravated Robbery, and having nothing

‘put what. he had already said and showing no good and sufficient

canse why judgment should not be pronounced:

THEREUPON, IT IS THE SENTENCE OF THE LAW AND THE JUDGMENT

" 4 _ OF THE COURT, as a continuation of this Court's sentencing order

of April 30, 1975, that the Defendant, FLOYD aes. de imprisoned

and confined in the Chillicothe Correctiona} for an indeterminate

period of not less than SEVEN *7) YEARS and not more than the

maximum of TWENTY-FIVE (25) YEARS for the punishment of the crime

of AGGRAVATED ROBBERY, Count Two (2), Ohio Revised Code Section

2911.01, a felony of the first (lst) degree; said sentence shall

be served concurrently with this Court's order of death regarding

the companion conviction in this case of Aggravated Murder,

issued on April 30, 1975.

| If IS FURTHER ORDERED that the Defendant, FLOYD EDWARDS,

pay the costs of this prosecution (Aggravated Murder and Aggravated

Robbery) for which judgment is hereby rendered against him; including .

counsel fees to be set at a later date to be allowed to Attorneys

Theodore Chuparkoff and Charles D. Parke; said monies to be paid

coP®

ed

to

APPROVED:

to the Summit County Clerk of Courts, Summit County Courthouse,

Akron, Ohio 44308.

THEREUPON, the Court informed the Defendant of his right

to appeal pursuant to Rule 32(A) (2), Criminal Rules of Procedure,

Ohio Supreme Court, and Attorneys Theodore Chuparkoff, and

Charles D. Parke, are hereby appointed to prosecute the Defencant'‘'s

appeal. . , . ; t.

May 1, 1975 -. Se tee

. PREDERIC L. ZUCH )

Assistant Prosecuting Attorney

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THE STATE OF OHIO

tig a COURT OF COMMON PLEAS

® JANUARY Term 19__’>

THE STATE OF OHIO No__75 1 52 7

v3.

PLOYD EDWARDS

= ae e N

THIS DAY, to-wit: The 306th day of April, A.D., 1975, now

comes the Prosecuting Attorney, STEPSAN M. GABALAC, by Assistant

Prosecutors FREDERIC L. ZUCH, and JAMES A. RUDGERS, on behalf of

the State of Ohio, the Defendant, FLOYD EDWARDS, being in open

Court with counsel, THEODORE CHUPARKOFF, and for further hearing

in this matter. |

The Court, having heard testimony in this matter presented

on April 29, 1975, and upon due consideration hereof, finds that

there are no mitigating circumstances present.

THEREUPON, the Court inquired of the said Defendant if he

had anything: to say why judgment should not be pronounced against

him; and nesses from the Defendant and no showing of good and

sufficient. cause being demonstrated as to why judgment should not

be pronounced: ei | |

THEREUPON, IT IS THE SENTENCE OF THE LAW AND JUDGMENT OF THE

COURT, that the said Defendant be taken hence by the Sheriff of the

Summit County Jail and there safely kept, and that within thirty (30)

. days the said Defendant be conveyed by the Sheriff to the CHILLICOTHE

INSTITUTE

that he there be safely kept until the first day of September, A.D.,

1975, on which day, within the enclosure provided, inside the walls

Institution

of the said Chillicothe Correctional prepared for that purpose,

according to law, the said Defendant, FLOYD EDWARDS, shall be

Institution

electrocuted by the Warden of the said Chillicothe .Correctional or

in case of the Warden's death or inability, or absence, by a

Deputy Warden of said ‘Institution, that the Warden or his duly

‘authorized Deputy, shall cause to pass through the body of the said

FLOYD EDWARDS, a current of electricity of sufficient intensity to

(cory

(OVER)

he

- PREDERIC L.

_Assistant Prosecuting Attorney

No

cause death, and that the application of such current of

electricity shall be continued by said Warden of said

Institution; or said Deputy Warden, until the said Defendant,

FLOYD EDWARDS, is dead, for punishment of the crime of

AGGRAVATED . MURDER, with specification, Count One (1) of

the Indictment, Ohio Revised Code Section 2503.01, a special

felony. |

| IT IS FURTHER ORDERED that the Pefendant, FLOYD EDWARDS,

again be brought before this Court on May 1, 1975, at 8:45 A.M.,

to be sentenced on the companion charge, in this case, of

Aggravated Robbery.

APPROVED: - .-- --

April 30, 1975

~-

ZUCH

JAMES: A.RUDGERS “ es - me tbh IS*

Assistant Prosecuting Attorney i

\:

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a ed ao? « €3°4 o tte ow me 4 - - _* . . +2 4

~+;:- JAMES VY. BARBUTO, JUDGZ

* “Court of Common Pleas

See UR ZagT 7. Fo teye Summit County,. Ohio a | ”

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JANUARY Term 19_725.

-™

———-

it.

@bz state or ono — No_25152

v3.

FLOYD EDWARDS - AL ENTRY ,

mY

THIS DAY, to-wit: The 4." , March, A.D., 1975,

came the Prosecuting Attorney, on behalf of the State of Ohio, the

Defendant, FLOYD EDWARDS, being in Court in custody of the Sheriff

and accompanied by counsel, CHARLES D. PARKE and THEODORE CHUPARKOFF,

for trial herein. HERETOFORE, on March 5, 1975, a Jury was duly

empaneled and sworn, and the trial commenced and, not being completed,

adjourned from day to day until March 6, 1975, at 3:45 o'clock

P.M., at which time the Jury having heard the testimony adduced by

both parties hereto, the arguments of counsel, and the charge of the

Court, retired to their room for deliberation. And thereafter,

said Jury having been sequestered, came again into Court on March 7,

1975, at 11:53 o'clock A.M., and returned their verdict in writing

finding said Defendant GUILTY as charged in Count Number One (1) of

the Indictment, to-wit: : AGGRAVATED MURDER, a special felony in

violation of Section 2903.01 of the Ohio Revised Code, and |

further finding the Defendant NOT GUILTY of Specification One (1)

{2929.04(A) (3)}] to Count One (1), and GUILTY of Specification Two (2)

—_—_——

[2929.04(A) (7)] to Count One (1). Said Jury further found said

Defendant GUILTY as charged in Count Two (2), of the Indictment,

to-wit: ‘AGGRAVATED ROBBERY, a felony of the first degree in violation

of Section 2911.01 of the Ohio Revised Code. .

IT IS FURTHER ORDERED pursuant to the above verdict,

tht a pre-sentence investigation and a psychiatric examination be

made forthwith, concerning the Defendant, the report of said

examinations to be submitted to this Court.

. cory”

IT IS FURTHER ORDERED that DOCTOR ABDON VILLALBA be

appointed to conduct the above referred to psychiatric examination

of the Defendant to determine whether or not the offenses in the above

case were primarily the product of the offender's psychosis or mental

a deficiency, though such condition is insufficient to establish the

. defense of insanity.

| In the event that DOCTOR VILLALBA is unable to conduct said

exemination, If IS FURTHER ORDERED that the Summit County Psycho-

Diagnostic Clinic perform said examination through its facilities.

‘If'IS FURTHER ORDERED that this matter be set for hearing

|

:

.

‘upon the completion of the above referred to examinations, and that

. the Defendant ke remanded to the Summit County Jail to await further

ae concerning sentence.

_ APPROVED:

March 7, 1975

FREDERIC L. ZUCH

Assistant Prosecuting Attorney

JAMES A. RUDGERS

Assistant Prosecuting Attorney

mas

JAMES. V. BARBUTO

Court of Common Pleas

ce: Dr. Abdon Villalba Summit County, Ohio

Summit County Psycho <= Diagnostic Clinic

Attorney Charles D. Parke |

Attorney Theodore Chuparkoff .

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SUMMIT COUNTY: INDICTMENT FOK: Aggravated Murder (1)

* Ageravated Robbery (1)

REVISEDCODESECTION: 2903.01 (3)

2911.01

In the Common Pleas Court of Summit County, Ohio, of the term of

JANUARY ; - in the year of our Lord, One Thousand Nine

Hundred and__SEVENTY-FIVE

The Jurors of the Grand Jury of the State of Ohio, within and for the — of the

County aforesaid, being duly impanel'ed and sworn and charyed to inquire of and present z lo fonses

whatever committed within the limits of said County, on their oaths, IN THE NAME AND BY THE

AUTHORITY OF THE STAT= OF OHIO, :

DO FIND AND PRESENT, That __ FLOYD EDWARDS

28th day of _December _, 19.74 , at the County of

AGGRAVATED MURDER

on or 2bout the

Suramit, aforesaid, did commit the crime of

in that he___.jdid purposely cause the death of

Joesph Eshack, Jr., while said Defendant was committing, or attempting te

commit or fleeing immediately after committing or attempting to commit

ascreye robbery (2911.01), said death being ‘rary to eViseda

e . (B), and further said cause of death being done under

aggravating circumstances, to-wit:

Specification (1) to Count (1) 2929.04 (A) 3

“The Grand Jurors further find and specify that said offense was committed

‘+for the peapese of escanij detection, apprehension, trial, or punishment

. ‘for another effense Committed by said Defendant, to-wit: A gravated Robbery

2911.01 . . = )

Specification(2) to Count (1) 2929.04 (A) °

The Grand Jurors further find and specify that the offense -sented above,

the killing of Joesph Eshack, Jr., was committed while the said Defendant —

was Committing, attempting to commit, orfleeing jimmediately after commit-

ting or attempting to commit aggravated fobbery, 2911.01

COUNT TWO”...

“.

and the Grand Jurors of the State of Ohio, within and for the body of the

County of Summit aforesaid, on their oaths in the name and by the authority

of the State of Ohio, DO FURTHER FIND AND PRESENT, That FLOYD EDWARDS, at

the County of Summit and State of Ohio, on or about the 28th day of

December A.D., 1974, at the County of Summit, did commit Aggravated Robbery,

to-wit: that_sa EDWARDS while he was attempting to commit or was

committing ajtheft offenseJas defined in Ul o 10 Revised Code,

to-wit: said Defendant FLOYD EDWARDS, did take and deprive Joesph Eshack, Jr

of certain United States Currency in the amount o = “

($65.00); _or whilefleeing immediately after such atten fense did

inflict serious iysical harm to another, ie., he did kill Joesph EShack, Jr.

in the City of Akron, County of Summit and State of Ohio, with a deadly

weapon, to-wit: a Pistol, said offense of Aggravated Robbery in violation

of Ohio Revised Code Section 2911.01 (A) (1) and/or (2), contra to the

form of the statute in such case made ani provided and against the peace and

dignity of the State of Ohio.

Oh) STEPHAN M. GABALAC

. J A

Prosecuting Attorney JS/bas

A TRUE BILL ‘ isieee) V. BECK BODAGER

oo i Foreman of the Grand Jury

<..-

>

|

only to Counsel and not to the Prosecution; and as it

asking that the report of Dr. Migdal be made available

turned out, I think, that we had some basis for that

because as Your Honor knows in the report Dr. Migdal

relates the facts of the case as related to him by the

defendant. Your Honor is familiar with that. And we

are claiming that this is highly prejudicial because this

report was sent to the Prosecutor and it could very well

have a bearing on the prosecution of this case, giving

them the facts which they uay not have already been avare

of. It might cause them to present witnesses they might

not have otherwise presented.

Secondly, in counection with that, Your

Honor, I want to put this in the record that I think the

Statute as to examination of the defendant contemplates

examination after conviction. It talks about pre-sentenc

examination, And this, of course, was the purpose of

Your Honor'’s examination, to determine the possible nenta]

————

deficiency of the defendant... -— -

. . aon ee pit

a COURT: No. That's not my purpose. ‘So

2 ate

don't read that into the record. I do that to determine

whether or not this person should stand trial, at least

to get an insight into this particular person. I always

have them start the pre-sentence and start the papenantnte

evaluation but 2 not for that ultinate purpose because I |

Orrtcias ‘quenenan® meroare 2QQ-ron. Onto

don't know if that's ever going to come about. How do

I know what the jury is going to do, Hr. Parke?

MR. PARKE: Well, that's right.

COURT : So, therefore, I'm not going to

make a judgment on this case. I can’t.

WR. PARKES: That's right, but Your Honor

is gitting as a judge of this case.

COURT: That may be, but the point pe)

I don’t make the decision. The jury does in this case.

But go ahead, Go ahead with your motion.

MR. PARKE: Well, Your Honor, that motion

is before you?

COURT: Yes.

MR. PARKE: By sending the report to the

_

Prosecutor that the rights of the defendant have been

prejudiced in this case where there is a confession that's

related in the report.

COURT: Okay. Anything else on that

motion? |

MR. PARKE: No, Your Honor.

COURT: Who is going -- you may proceed?

MR. RUDGERS: Just a couple points -~ The

—_—_

State doesn't know why the examination was ordered, I

would assume to find out whether the defendant is

——— er -

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entirely within the peerogative of the Court and

authorized by the statute and that report, a report based

on whether or not the defendant is competent to stand

trial becomes part of the public record.

Secondly, I don't think the Defense has

shown how they have been prejudiced by the Prosecutor

receiving a copy of this report, and until such time as

they can, I don't think there's any use to consider the

motion any farther.

Finally, there's nothing in that report

that the prosecution did not already know by way of

statements made by the defendant prior to his arrest and

so there's no chance that we could have obtained infor-

mation that would have led to other witnesses or other

evidence from that report.

COURT: All right. Motion is denied.

COURT: The next motion?

SOL SGPT IMTS D

MR. PARKE: Your Honor, I would like to

make an oral motion at this time?

COURT: Sure.

- .

2

MR. PARKE: Your Honor, at this time the

defendant moves that the Prosecution make the indictment

definite and certain and also to elect between items of

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In the indictment there are several specifications made

that the offense was committed for the purpose --

Specification 1, Count 1, escaping detection, apprehension,

trial or punishment for another offense.

And then Specification 2, that it was=the

offense presented was committed while the defendant was

committing, attempting to commit, or fleeing immediately

after committing.

Now which is it? We are asking at this

time that the Prosecution specify which of the specifi-

cations and portion of the specifications they are relying

upon.

COURT: Overruled.

COURT: Next motion?

MR‘.PARKE: Your Honor, we also ask that

Count 2 of the inda‘ctment be dismissed for not stating

a cause of action or not stating that a crime has been

committed for this reason.

Now, Count 2 relates -— supposedly relates

to aggravated robbery.

COURT: Uh huh.

MR. PARKE: And in the definition of theft |

which is Revised Code Section 2913.02, which of course is |

one of the things that has to be proved in connection with

OFFICIAK SHORTHANO REPOATE AS, AKRON, Onto

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Obviously, also aggravated robbery in and

of itself is a theft offense. So by circular reasoning

it obviously states a cause of action.

In regards to Branch 2, the language of

defining theft offense — whether or not the statute does

not say, or in regarding the different types of theft,

the Ninth District Court of Appeals promulgated State vs

Rose Dugger, acknowledges some defect in the language

but the Court held that the language is valid by normal,

common sense reasoning through statutory interpretation.

The issue has been raised and decided by

the Ninth District Court of Appeals, just this morning.

| MR. PARKE: Your Honor, I hope you excuse

the defendant for not knowing about a decision made this

morning. |

COURT: No problem. Overruled.

Next?

MR. PARKE: Now, Your Honor, the final

motion that we have is a motion in writing. Do you have

a copy of that? It's called Motion to Suppress Statements

made by defendant, filed on February 13.

COURT: Yes, I have it now.

MR, PARKE: Your Honor, in connection with

that motion I believe — well, we would like the defendant

Be ee a ee eee rene «eee

Orrictal SHORTHANO nevoarchd. ARRON, Onto

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The deferdant was brought down to the Station at 5:30.

How long vas he in the Interrogation Room from beg inning

to end?

From the time he was picked up until the time he was

booked?

Yes?

I believe it was after 3:00 A.NM., according to the book.

If I told you he was booked more like 5:00 o'clock, might

that be an accurate statement?

That could be better.

The defendant was in the Interrogation Room for 11 hours?

Yes, sir.

And describe the Interrogation Room?

Oh, it's a room about six foot wide and nine foot long.

And during the course of those 11 hours, how many aitterent

people walked into that room and talked to him or asked

him questions?

Four.

MR, RUDGERS: That you know of. Right?

That I know of.

That you know of. Who are they?

Prosecutor Shoemaker, Detective Goodwell, Detective Craig

and myself.

How about Mr. Zuch?

And ir. zuch. That's right, sir.

OFFICIAL SHORTHAND REPORTE AS, AARON, Onio

44

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‘ _——

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to look at the card and read it?

Yes, sir.

Was it ever ascertained that he in fact was able to read

it or did you just assume that he could?

We assumed that he could,

Okay. And I take it you assumed he understood what you

were telling hin?

Yes, sir.

And it's based upon an assumption, you really don't have

any knowledge or facts that he understood what his rights

were or what the Miranda ruling was, isn't that a fact?

It was all explained to hin, sir.

But you are essuming that he understood it, right?

Being & graduate of high school, we assumed he could

read and write, yes.

If it turned out he couldn't read, would that change your

assusption?

MR. RUDGERS: Object.

COURT: I'm going to sustain that.

MR, CHUPARKOFF: I think the evidence will

be, Your Honor, he can't read.

COURT: Well, so he can't read. That's a

Ee ‘ate, a

question for the jury to determine that,

= Nee nla

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— -_=- ——--- NT

——

MR, CHUPARKOFF: All right.

Now, how long was he in the Interrogation Room with you

OFFICIAK SHORTHAND REPORTERS. AKRON. Onico

45

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232

autentive Goodwell and I went to the house where he was _

reportedly staying. We sat on the house. Pretty soon |

Mr. Edwards left the house. At that tise we followed him

and eutthes for another cruiser to stop the car, and picked

him up at that time.

What did you say to him? What did he say to you at that

tine?

I told him that Sgt. Cross would like to talk to him at

the Police Station. He said Okay.

Then he got in the cruiser, came down to the Police

Station?

Yes, sir.

You put him in the interrogation room at the Detective

Bureau, 6th Floor?

Yes, Room 9,

Did you have occasion to talk to him from that time until

you left your shift?

Yes, sir,

Okay. When did you have occasion to talk to him?

When we first got to the Station, Detective Goodwell, in

my presence, read him his Niranda Warnings.

Did he read those warnings from a card?

Yes, sir.

|

Do you have a card with you?

CFFICIAR SHOR THANO aeons @3. An#On. Onio

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Well, Grover told hin, "We have another witness in.

another roen, You don't have to give us a statement."

But we know you did it?

“We already know. You can or you can’t -— you can do

it or you don't have to."

But in the same breath didn't Grover Goodwell say, "If

you tell us, the Court might take that under cons ider-

ation; it would help you."

I don’t remember him saying that.

You don't remember him saying that?

No, sir.

By your not remembering that, he may have said that?

I can't say he didn't say it, no, sir.

<=

Okay. When you say you can't say he didn't say it, he

is your assigned partner?

Yes, sir.

Have you ever heard him say that in trying to take a

statement from an accused?

MR. RUDGERS: Object,

COURT: Sustained.

In your presence was he asked to read the Miranda card?

I don't remember. I don't think so. I don't remember.

MR. CHUPARKOFF: We have nothing further,

Your Honor,

COURT: You may step down,

Se eee eee

OFFicial SnomTHand REPOATE AS,- AnROn, Onto

47

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I didatt know nothing about what he says. I told him if

: he wanted to believe what Haywood told him, go ahead.

: i @ Go ahead.

; After that he said, Haywood already said you done killed

> ‘ — ‘

5 the man; he already told us everything so you €0 ahead and

—

. tell us, we will make it easy on you; the Court will look

a

at that.

—

The Court will what?

The Court will look at that.

Go ahead. th

After that his partner came back in. |

Would that be Mr. Craig?

Yes, the one just left off the stand.

All right.

Then he asked him, “Did he admit it?”

I'm sorry? e

‘Then he asked, "Did he admit it?" His partner said, "No,

> © rp © ry © FF O&O PF ©

he didn't admit nothing.” They both went out the roon,. If

The Detective that was on the stand said Sgt. Cross didn't

come in until Six. He didn't come in until 7:00 o*clock.

How long were you in the room before Mr. Cross came in? | Vit

About an hour and a half.

Q Now, during the hour and a half that you were there, did |

Craig and Gocdwell talk to you?

A Yes.

OFFICEAL SHORTHANO REPORTERS. AxROn, ONTO

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A Yes, |

Q Did Mr. Cross read from a card?

A When he first came in?

Q Yeah?

A No,

: —@ Well, how long after you and he talked did he read from

<= ;

~ a card?

s? 4 ;

" | & It was about— I'd say about five or ten minutes later, i

i

$ | then he read the card to me. | |

i

' Q Okay. Did you tell him you did it, before he read the

: card?

| A No. I told him I didn't know what he was talking about. ;

Q Did Goodwell or did Craig tell you that they knew all i

ae |

about it; you might as well tell so the Court would go

== ~~ i

easy on you at this point?

. ,

: A Yes, they did. |

Q They again told you this? | |

SP PN DENS DS EE

Yes.

)

i Q Eventually, did you in fact tell Cross that you were

involved?

° , 4 3

) A Yes, | {

j

i Q Why did you tell hin? it

1 i

A He told me, woll, if I told the truth about it, the Court

would be lenient on me; so that's why I done it. ;

Q Then you went ahead and told him, is that right? 3

OFFiCtalL SHOonTHano RE RATERS. AKRON, Onto . if

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Yes. :

Before he read from the card? i

Yes,

But at one time he did read from a card?

Yes.

Did it sound like the same card that Cross s«\d he read?

Yes, it did,

Did Shoemaker ever ask you whether you wanted 4 lawyer?

a

No, he didn't,

—-_—_— :

Did Shoemaker ever ask if you could afford a \“wyer?

No.

Did you testify that Mr. Shoemaker in fact swed you a

card and asked you to read it?

Yes,

Did you have a card in your hand?

Yes,

Did you look at a card?

Yes,

Did you understand everything Shoemaker was telling you?

No.

Floyd, you graduated from high school?

Yes.

I want to show you this card. I want you to ' honest,

If you can read it, I want you to read it. if you can't

read it, I went you to try -- the whole thing.

OFrictal SrontHanod — mS. ARPOK, Onto

error, exceptions are preserved. Anything elise?

MR, PARKE: That's all.

MR. CHUPARKOFF: That's all.

a

COURT: I'd like to bring the jury in,

swear them in and let them go to lunch; start taking

testimony smediately after lunch. Do you waat to make

opening statements now? Let's do it that way.

**es +e 8

OFFICIAL SHORTHANO REPORTERS, AKRON, Ont0

51

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——__ ===

this Court.

MR. CHUPARKOFF: Okay.

COURT: I am finding: 1. The Miranda

Warnings were given to hin. He understood them. He

complied with then. 2. I find no duress at all.

As far as the missing link between the

tape, it‘ts been explained to the Court's satisfaction,

that there was nothing subversive or illegal about what

transpired as far as anybody was concerned. There's no

question in the Court's mind that he specifically knew

his rights because both the Police Department and the

Prosecutor's Offico went overboard in making sure that

he understcod his constitutional rights. At least that's

the way the Court sees it. And, well, I'm going to make

my ruling.

MR. PARKE: Defendant excepts to that.

COURT: I can't hear you?

MR. PARKE: Defendant ensepts te the

ruling of the Court.

COURT: Yes. You may have your exception

throughout this trial. You may have a continuing .

objection as far as you are concerned, as far as the

defendant is concerned. So we don't have to worry about

that. The record is protected, and I so instruct Ruth

| oo

OFFICIAL SHORTHAND REPORTERS. AXRON, OnIO

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(Motion out of the hearing of the Jury)

MR, CHUPARKOFF: The Defense objects-to

the. calling to.the stand. of witness Ron Davis as 2&2 witness

for, tae..State, for: thé reason that: under: the- Rules: of? .

Criminal Procedure the, prosecution: was: required ‘to: give

,', their lead-off witness, Mr. Mack Davis Newberry, had a

us, Jist of: all. of: their, witnesses;~ They: did not: give

eee

us- the; name-of- Ronald Davis; .and:therefore- we object> to

~n— aa .

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him.testifying,- i a), ae . ee Le

al

MR. ZUCH: I would also like to put into

the record, on behalf of the State of Ohio, that the

Defense Counsel in this case has been given full discovery

all physical evidence including photographs and shell

casings, that this witness will testify to. |

~~ The State of Ohio learned yesterday that

stroke and is currently in Akron General Hospital. The

State does not represent that they were not going to call

this witness. We did intend to call the Uniformed

Officer, being the first on the scene representing a

police agency. It's by inadvertence that this witness'

i ——

+=.

name was not on the witness list.

pe I

MR, RUDGERS: Much of what Mack Newberry

could have testified to, this Officer would have just

corroborated, Mr. Newberry suffered a heart attack. I

talked to his doctor, Howard Shapiro, last evening. He

53

~—.+ « . - - - —_— eee ee

said it would be impossible for him to testify today.

MR, CHUPARKOFF: The Defense takes the

position that we are prejudiced by their failure to

include him as a witness, if for no other reason than the

rules of discovery permit us to analyze the witnesses and

er

what each will testify to, and we have a right to judge |

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our case and base our defense upon what the prosecution

‘A ———

says the evidence, would have been,

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|

| 1}

COURT: Overrule your motion, H

- -_ —_ - -_- i

|

i

COURT: Proceed. |

By Mr. Zuch;: . |

Q Officer Davis, did you in fact arrive at 223 Wooster

Avenue location on December 28, 1974? '

A Yes, sir, we did. | |

Q I believe you stated the time. Would you repeat it?

A I received the call at 6:19; got there approximately il

6:23. I

Q What did you observe as you arrived at the scene?

A As we pulled upon the scene, an older colored gentleman mM

was standing to the west of the building, and in front

of the Comet Tool Sales was a white Toyota Station Wagon, |

I also observed in Comet Tool there was a light on and Ht

the door partially open about three inches.

Q What is the next thing you did, Officer? —

OFrictal SHonTwand acooet Ons. Ax®On, Ours

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We got out of the car, As we approached, my partner

went to talk to this gentleman, as he motioned toward

the inside of the building. And at that point I looked

inside the building and saw a man inside.

What was the approximate position of the man inside the

building?

It was about ten yards inside the building in the center

of the aisle.

What was the condition of the inside of the room which

you saw the man?

Condition: of: the room was very much, in: disorder; machine

parts,, tools, etc. all over the place’, complete disarray,

Was there walk space inside this particular room?

A very narrow, somewhat of a path through the center of

all these tools and junk almost, right straight through

the center of it.

Upon making these observations, what did you do next?

I motioned to my partner, told him that there was & man

inside which is agpnacntiy what this fellow was telling

my partner at the same time. So we approached the door.

I entered first, pushing the door on open and we entered,

looking around, We could see this gentleman was slumped

over in the center of the aisle. We proceeded forward,

and I was checking to make Sure, a3 well as I could, that

there was no one else around; and also in an attempt to

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OFFicialL SHORTHANO — mS. AKRON, Onto

over in the middle of the aisle, obviously in a face-down

296

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determine what the problem was at that point. . | ne

os

Q And what did you do next? Be

By!

A At that point I went over to the gentleman who was slumped fh

ite

1

position, And I felt the neck, the carotid artery to

determine if there was pulse. There was not. I pulled

up the right shoulder of this body enough to get a look,

and at that point I could see his face was turning blue;

and I released him, let him back down.

Q Did you significantly move the body or was this just--

Sn ee ee ee

A No. It was just a movement of approximately 12 to 18 |

inches, just enough to get a partial look.

Q Did you return the body to the position it was when you H

found it? | at

LA Yes, I let the shoulder back down gently. :

Q What is the next thing you did, Officer?

A Well, in the position that I was, somewhat in a semi —

you might say, half-bent over state. I began to stand

= Sr vee ee

up. As I looked to my right, I saw a shell casing on a_

piece of paper to my right.

Q Okay. In relation to the body, where would the shell

casing have been?

A Somewhere between 18 and 30 inches to the rear and to the

a —

+ eT

right of the body.

Q Okay. What did you do next, Officer?

OFFICIAL SHORTHANO REPORTERS, AKRON, Onto

56

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Okay. And would you explain how that was done and what

Okay. I was directed to a shell casing that was off to

the right of the body, and at this time there was no

indication of whether this was a natural death or a persor

had been shot or want. I then went to the victin, trying

to determine if this was a natura’ death or some other

type of death, And so I examined the back of the person,

which indicated nothing. Further examination, in cover-

ing the back of the head with my fingers, I discovered

some blood and at this time then I observed some type of

a wound at the back of the head, approximately two inches).

above the hair line.

Continue.

So at this time I took some photographs, some color

slides of the victim on the floor from a couple different

angles before I moved the body at all. After the

photographs were taken I went back to the body before I

moved it, gave it a pat-down search for identification

of back pockets, which woule be the nassible nlace.for a

wallet.) I did not find anything, so at this time I asked

if it was all right to move the body -- if they were done

so we could go further with the examination,

Did you in fact move the body?

Yes, I did,

]

you observed during that process? .

52

— “/ - —

— a ‘

greater than three feet,

Now, during your autopsy you have indicated you had

occasion to conduct an external examination of the gunshot

wound in Joseph Eshack, Jr.'s bead. Did you find, Doctor,

the presence of any fouling or stippling? :

—

No, sir.

Did you examine the entrance wound itself?

Yes, both visually and also the entrance wound was excised

and examined microscopically.

You say excised. What does excised mean?

Cut out.

Cut out?

To observe.

And examined microscopically? The examination of that

wound, did it indicate the presence of any fouling or

stippling?

No, cir.

Doctor, based on your training and experience, based on

the examination of Joseph Eshack, Jr., do you have an

opinion as to the cause of death in this case?

Yes, sir.

What is that opinion, Doctor?

Opinion is that he died as result of a laceration of the

brain as result of a penetrating gunshot wound in the

eee re reecemees

OFFICIAL SHORTHANO REPORTERS, AnRON, Onto

Well, upon moving -- it was difficult in moving the

person, He was in a kneeling position and I had to lift

him up and off to the side to where we could even step

around, The room was cluttered with different articles,

but in doing so, in lifting the shoulder and pulling him

back, there were ¢ s and a hat is

face,

At that time then, after I could get myself

squared around, I took a photograph of his hat and the

glasses before I moved it -- took a photograph of this,

then checked the glasses and the hat, which the hat

there was a small amount of blood and the glasses had a

little bit of blood on them, They were not broken, bent

or anything like that. After moving this, then I assisted

the ambulance crew in putting sheets around the victin

so he could be moved out. I was unable to get an

ambulance stretcher into the scene,

The reason for that being?

Well, the articles on the floor. It was just too difficul

to bring an ambulance cot and put the cot down and carry

him out this way. We had to carry"him out on sheets

because of the-room being’so cluttered.

Continue,

After the victim was removed from the scene, I think I

took another photograph of the scene after he was removed

t

J

OFriciat SHORTHANO PreORTE RS, AeeOx, Onto

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I went to the room where the decedent was put, and along

with the Identification Officer who took photographs of

the victim, took more photographs for identification

purposes and such; also removed the belongings of the

person from his pockets, along with the Akron Police

Department noting down what was removed, which was some

change, small tools, nuts, bolts, screws, miscellaneous

items in his pocket. This was put with the Akron Police

Department, Then I removed the clothing to determine if

there was any other evidence of wounds, abrasions,

lacerations or such, At that time there was none

observed, Then the victim} the clothing was transported

by ambulance by myself to the County Morgue,

Now, you stated that earlier you had looked for a wallet,

after you got to the hospital and after you took the

clothes from the victim did you ever determine whether

ee

w—

or not there was a.wallet? _

No. There was no wallet found on the person. There was

—

MR, CHUPARKOFF: I will object. He's

answered the question, Your Honor,

COURT: Put another question,

Did you find any money? You said you found some change?

Well, there was change, to the best of my knowledge right

ne

now, I think five dollars something, some odd change~

eo —

OFFICIAL SHORTHARO FE PORTE AS, AKRON, Onto

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Yes.

Do you work, Gary?

Yes.

Where do you work?

Edgewood Homes.

Edgewood Homes?

Yes,

What would be the formal name of your employer? What

organization is that?

Metropolitan Housing Corporation.

The Akron Metropolitan Housing Authority?

Yes.

How long have you been employed there at the Edgewood

Homes?

About four months.

What are your duties there at the Edgewood Homes in your

employment?

Mopping hallways, sweeping hallways.

I'm going to call your attention now to approximately

December 30, 1974, and do you remember whether you worked

ee ee

that day or not?

Yes.

And did anything unusual happen in the course of your

employment that day?

——_— oo

OFFICIAL SHORTHARO REPORTERS, AKRON, Onto

. _ SS SE LS TY ST ae ra et

investigation?

My partner and I, Detective Harris, spent the first day

re-interviewing the family, the wife, Mrs. Eshack; went

to the towing company,< A-1 Towing Company, to check out

the truck that was owned by Mr. Eshack. We talked to

ir. Newberry, the party that--

MR. CHUPARKOFF: Object.

COURT: Sustained,

Okay. Continue.

We talked to several people that day, and for the follow-

ing nine or ten days we talked to numerous people in |

regards to the investigation.

In the course of that investigation did you ever have

occasion to examine a wallet?

Yes, sir,

And the wallet that you examined, where did you obtain 107

From the Police Property Room

I hand you what has been marked State's Exhibit 13,- Could

you see if you could identify that, please?

Yes, sir. This is the wallet that I examined the day I

removed it from the Police Property Roon, !

Were you able in your examination, or did your examination

reveal any particular name on the papers inside that

wallet?

There's numerous papers; several cards here with the

OFFiciad SHOntTHanod REPORTERS, anndn Ono

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name Joseph Eshack on then,

To your knowledge was that wallet ever checked by the

Akron Police Department for any type of fingerprints?

Yes, sir. Detective Shaffer was the one that dusted the

wallet and contents, some of the contents, for prints

ee eae

"eres

but none were found.

——— - --

Okay. Calling your attention to January 9, 1975, could

you give us a run-down of your schedule that day in

regards to the investigation of the homicide of Joseph

Eshack?

On that particular day we received information that Floyd

Edwards may possibly be involved in the homicide, We

worked several hours. We come up with the name of

Haywood Manning, supposedly Floyd Edward's running buddy

and best friend. We found out that Mr. Manning lived at

950 Lane Street.

Is that in the City of Akron?

Yes, sir.

Continue.

During the course of the afternoon we sat on the house

at 950 Lane, watching for traffic in and out, but none

appeared, At 4:00 o'clock, on return to the Station I

passed the information on to Detectives Goodwell and

Craig about the possibility of Floyd Edwards being

involved and being with Haywood Manning, and if they

OFFICIAL SHORTHANO REPORTERS, AKAON, Onto

63

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— + -— —

-* -_<

——-~ —

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By Mr. Zuch;:

343

would stake the house out and if they seen any activity

to pick the two men up; and if they did, to call me at

home,

Later that day did you receive any notification?

Yes, sir. About 5:30, I believe it was, I received

information that Goodwell and Craig had both men at the

Station, or were on their way into the Station,

MR, CHUPARKOFF: At this time, I anticipate

the examination and not to interfere with Mr. Zuch's

questioning we would at this point object to any further

testimony on the basis of the two reasons we spoke to you

earlier today.

COURT: Overruled.

MR, ZUCH: At this time also, Your Honor,

in response to what we had talked about, the State would

move State's Exhibit 13 into evidence,

MR, CHUPARKOFF: We would object,

COURT: Shall be admitted.

Upon the notification that you have just referred to by

Detectives Goodwell and Craig, what did you do next,

Sergeant?

I immediately left my home and returned to the Police

Station,

Upon arriving at the Station, what did you do?

OFFicial SHOP THAN ih AaRon, Onto

399

This tape is being started at 460 feet on side one of

State's Exhibit 3. I would like you to listen to this

tape and see if you can identify it.

(Nods head, )

Is that a yes?

Yes.

Thank you,

(Whereupon, the tape recorder is now playing:)

Speaking is Assistant County Prosecutor John Shoemaker.

I am located here on the sixth floor of the Akron

Detective Bureau about quarter of three A.M. on January

10, 1975. Present here with me again is Mr. Floyd

Edwards, and Mr, Edwards, I have already explained your

rights to you, and I am going to go through this one

more time because I am going to ask you about this

firearm that I have in front of me. You got a light?

Now, Mr. Edwards do you have -~ do you understand that

you have the right to remain silent?

Yes.

Is that yes?

Yes,

Do you understand that anything that you say could be

used against you in a court of law?

Yes,

x

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REDIRECT EXAMINATION BY MR. ZUCH:

Q

428

kill the man, He told you the gun went off and he didn't

want the gun to go off?

He told us the gun went off.

He told you the gun went off with Stanford Harris’ hands

on the gun, isn't that right? |

Yes.

It's a question of whether you want to believe that or

don't want to believe it, right?

Yes.

You don't want to believe it?

Right.

You don't have any other evidence to the contrary?

Other than the position of the body and the way the story

was given to us.

MR, CHUPARKOFF: Sgt. Cross, thank you very

much,

I have a couple questions on redirect. Did your investi-

gation, after your discussing the matter with Mr, Manning,

Mr. Edwards, Mr. Harris and the other people that you

discussed it with in the course of your investigation,

ever indicate that Hayward Manning was involved at all in

the robbery?

2 —_—-

MR, CHUPARKOFF: I will object to that.

OFriciay SHOetTHan® MEPORTE AS. AnPOn Ont

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432

oe COURT. He may answer. ,

ie | |

Is this what was shown in your investigation that this : | Lj

4 happened?

A Yes, sir.

Q ‘Okay, continue.

Left the Comet Tool, walked back to the laundromat, told

‘

(Pee ——

Mr, Manning that he just robbed and shot a man, Number

ey eT _

Two; and the third point was the gun used was linked

directly to Mr. Edwards by the owner of the gun, Mr.

Debuice and was not linked with Mr. Harris at all. The

billfold that was found was found at the Edgewood

bl od —

Apartments, 687 Warner Court, now this is where Hr.

Edwards sleeps at night. He sleeps in the basement over

=

in the Edgewood Homes and not Nr. Harris.

We could never

find any direct evidence at all to link Mr. Harris with

Mr. Edwards and the killing.

Now, Mr. Chuparkoff mentioned some conversations that you

— - 2, > ee ©

had with Mr. Manning. I assumed that you learned the--

ca

. cee

MR. CHUPARKOFF: I didn't testify as to any

‘ conversations he had with Mr. Manning.

: MR. ZUCH: You asked him what he found out from

g Mr. Manning.

COURT: Pose the question.

Q Did you talk to Mr. Manning about his conversation with

Mr. Edwards immediately after the killing of Joseph

> 7 ae

OFFICIAL SHORTHANO REPORTERS. AXON, OnIO

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oxay. So you had occasion then to talk about the Eshack |

|

incident, is that correct?

yes, sir.

Upon that discussion with Hr. Eawards, what did you do

next? :

We took an oral statement from tir. Edwards.

By oral, do you mean @ statement that's not recorded?

Yes, sir.

Upon the conclusion of that oral statement, what did you

do?

At that time the Prosecutor's office was notified. Hr.

John Shoemaker, Summit County prosecutor's Office, and Mr.

Zuch arrived at the Police Station. We filled them in

on the conversation that we had with both men and Mr.

Shoemaker and I went back into Interrogation Room 9, and

Mr. Shoemaker took a recorded statement of what Floyd

Edwards had said.

You were present during that recorded statement?

Yes, sir.

At the conclusion of that recorded statement, what did

you do next?

After the recorded statement was taken from Mr. Edwards,

we then went to Mr. Haywood Manning and took a recorded

statement from him also.

Who took the recorded statement of Hr. Manning?

OFFiciaL SHOR THANO REPORTERS, AXFON. Ono

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was State's Exhibit 12, or the envelope that contained or

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is around State's Exhibit 12, when did you transport that? i bh

er ae

At the very same tine, sir.

I hand you now an envelope that has been marked State's ]

Exhibit 10. Could you look at that and identify that, i

please?

'

{

This is the envelope that contained the shell casing that

was found at the scene, 223 Wooster Avenue. It was

transported at the same time -- the slug, gun and

magazine, to B.C.I. -- four items were taken at the same

|

time. \\\

Did you have occasion to return those items from B.C.2.7

Yes, sir.

Do you recall when that was?

January 28, I picked them up at the B.C.I. Lab and

returned them to our Police Property Roon.

Itm going to play the recording. Officer, I'm about

ready to play a cassette tape which is inserted in a 1k

tape player. The cassette tape has been marked State's i.

Exhibit No. 2. I'd like you to listen to this tape and

see if you can identify this tape, please.

"Speaking is Assistant County Prosecutor John

Shoemaker. It's now about 20 minutes after 8:00 o'clock i}

in the evening. I'm located here in the Akron Detective

Burean, the 6th Floor, Interrogation Room No. 9. Present '

OFFICIAL SHORTHAND REPORTERS, AKRON, OHIO

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443

Is that the one we played yesterday?

MR, ZUCH: No,

play ing)

--Ten P.M. on January the 9th, 1974 - 75, Praesent here

with me -- I am mixing up the dates, Present ere with

me is Det. Harold Craig of the Akron Police Ik;artzent,

and I believe it is Mr, Harold Manning, is thst correct?

Hayward,

!

Hayward Manning, And Mr. Floyd Edwards, is that correct?

Uh huh,

Now, Mr, Edwards, I have already given you your miranda

rights, is that correct?

Uh huh,

You will have to speak up a little bit.

Yeah,

Okay, and just again I am going to go through these

because we are making a new tape. Do you understand that

you have the right to remain silent?

Yes,

And anything that you say can be used against you in a

court of law. Do you understand that? Is that answer

yes or no, sir?

Yes,

Okay, you have a right to have a lawyer present with you

before you talk to us. Do you understand that?

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Q Well, are you afraid that if he knows that you say that :

he's got the gun, that he would hurt you? |

Q You mean just talk about it, yeah, I don't know if he |

would hurt me or not. .I don't know that for sure. I

don't think that he would.

Q You don't know?

4 I wouldn't say that he would though.

Q Okay. It is now twonty-five minutes of eleven on

January 9, 1975. And this concludes tne second tape and

the second statement taken from Mr, Edwards on this matter."

(Whereupon, the tape is turned off.)

By Mr, Rudgers:

Q Detective, that statement that you just heard played on

the recorder, does that truly and accurately represent

the statement that you participated in on January 9, 1975?

A Yes, sir.

y Now, there's evidence ti * *hers was a statement, recorded

statement taken earlier Loyd Edwards. Could you tell

the jury why this second statement was taken?

A Well, the first statement it was found that there was

something happened to the machine or recorder, and some

footage of the tape was destroyed or erased or something,

so we took -- the reason we took the second statement was

to cover the neon covered in that first one that were.

a —

OFFICIAL SHORTHANO REPORTE as] Axron. Onto

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425

weenemneranmeneneers:ih

But he was arrested at five thirty in the evening and at

three o'clock in the morning you are still talking to |

isn't that a fact?

At approximately two thirty we had him identify the gun,

Let me ask you something else. Based upon your investi-

gation, not what somebody else might have told you, was

there any articles stolen from that Comet Tool on

December 28th at 5:30 in the evening, without suppositiong

or assumptions?

Will you repeat that again?

Based upon your knowledge, not based on assumptions, not

based on presumptions, to your knowledge what articles

were taken prior to or as result of your investigation on

December 28th when you investigated the tragedy of Kr.

Eshack? Not what Mr. Edwards told you but based upon

your other investigation?

Sixty-five dollars.

All right, sixty-five dollars.

Yes, sir.

You know that, or somebody told you?

A lim

_-_-

That's what we were told.

a Oe ee

Okay, ‘That's what you were told, but you don't know that

—

do you? Yes or no?

-_

|

|

No. |

No fingerprints on the wallet? !

OFFICIAL SHORTHAND REPORTE &5. AKRON. Onto

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This tape is being started at 460 feet on side one of

State's Exhibit 3. I would like you to listen to this

tape and see if you can identify it.

(Nods head.) .

Is that a yes?

Yes.

Thank you,

(Whereupon, the tape recorder is now playing:)

Speaking is Assistant County Prosecutor John Shoemaker.

I am located here on the sixth floor of the Akron

Detective Bureau about quarter of three A.M. on January

a -

10, 1975. Present here with me again is Mr. Floyd

Edwards, and Mr. Edwards, I have already explained your

rights to you, and I am going to go through this one

more time because I am going to ask you about this

firearm that I have in front of me. You got a light?

— Mr. Edwards do you have -- do you understand that

you have the right to remain silent?

Yes.

Is that yes?

Yes,

Do you understand that anything that you say could be

used against you ina court of law?

Yes.

me

OFFICIAL SHORTHAND Revo Bns, AKRON, Onto

Yes, sure. Some things he didn't want to_put on tape.

on the tape?

I don't know whether it's on the tape.

What you really are telling me and telling the jury,

there's several things he told you that aren't on tape?

Shoemaker didn't?

No, Floyd.

You let Floyd decide what you're going to put on the tape,

is that right?

Well—

Or is the truth of the matter——_

I didn't say that,

You got him to admit what he might have done, Later on

you called Shoemaker, Shoemaker gave him the rights

after it's too late to deny it,

MR, RUDGERS: Object.

That's wrong,

That's wrong?

Yes,

You admit talking to him, or your partner admits talking

to him, don't you?

That's right,

Prior to Shoemaker and implicating himself on the tape

recording?

That's right.

OF FIC EAw S408 THAN accultt es 40008 Own

—_— — ~~

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I don't remember.

He could have told you that?

Well, if I don't remember, he could have. Maybe he

didnt, I don't know. .

‘ Do you remember, and can you generally say there's a lot

of things that he told you that aren't recorded?

Yes, sir. I would say so.

Sure. And isn't it a fact that you or Hr. Shoemaker or

Mr. Zuch or Mr. Cross only put on tape the things that

they wanted somebody else to hear?

No, sir.

No, sir? But you didn't put everything on?

No, sir. Well, we had a tape recorder, You can't just

make a person s2y something. They just say what they

want to say.

All right. But when you go in to talk with a boy that's

being charged with aggravated murder, when you go in and

‘talk to him, you might expect he's going to reply and

respond to you, right? And you tell this boy that anything

he says may be used against him--

MR. ZUCH: Wait. Ought to have an answer.

COURT: Let him answer the question.

MR, CHUPARKOFF: I'm sorry.

I have an awful lot of them who don't reply.

But in this case this boy was talking to you?

OPricta SHonTHand meopere as, Anton, Onio

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COURT: Just asking for his opinion,

You believe some parts but you didn't believe other parts?

Yes.

As result of what he‘told you, did you arrest Stanford

Harris, yes or no?

Yes.

And as result of what he told you, did you charge Stanford

Harris with the crime?

Yes, sir,

You believed him because you arrested Stanford Harris

upon what he told you?

On the advice of the Prosecutor, yes.

Well, as a trained police officer, trained in investi-

gation, did you arrest Stanford Harris based upon the

statement that Mr, Edwards told you?

He implicated Stanford Harris. We arrested him. Right,

a him with the same crime?

Right.

What happened to Stanford Harris in this case?

We released hin,

Okay. Do you think in that aspect Floyd Edwards wasn't

telling the truth or you don't know which?

There were several reasons why Mr. Harris was released,

Well, let's see. Did you release him because you didn't

think Floyd Edwards was telling the truth?

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We released him because we couldn't find any direct

evidence to hold hin,

So you're not saying that you don't know whether he's

involved or not; you just couldn't find any direct evidence

right?

Right. Couldn't connect him with the crime,

Okay. When Floyd Edwards first talked to you before you

recorded his voice, it was after you talked to Hayward

Manning for about an hour, right?

That's true,

As result of your investigation, Officer, were you able

to determine whether or not Floyd Edwards allegedly was

drinking prior to the alleged escapade?

There was no report of him drinking. No.

Okay. Did you in fact ever ask him what he was doing

prior to walking down the street, or wouldn't that be

important to you?

He gave us a statement that he was with his friend,

Hayward Manning, his girlfriend Anita Watson; they were

at Manning's home, They drove down to the laundromat;

from the laundromat he walked to Wooster Avenue. There

was never any mention of his condition at the time.

And you didn't ask?

No, sir.

And you don't know if anybody asked? 77

OO

MR, ZUCH: Nothing else.

COURT: With the exception of that one

reservation--

MR, CHUPARKOFF: I want to do one more thing,

Your Honor. Mr. Zuch has marked the envelopes as exhibits.

There's also writing on the envelopes. I would respect-

fully let the physical evidence go in, not the envelopes.

COURT: Yes.

MR. CHUPARKOFF: I would ask the court reporter

to mark the exhibit with the same number as on the

envelope. Just so long as the envelopes and notations

don't go in. That's no evidence,

MR, ZUCH: Whatever way you want to do.

COURT: Anything else?

MR, CHUPARKOFF: You rest this case?

MR, ZUCH: Yes,

STATE RESTS

MR, CHUPARKOFF: Your Honor, we move for a

directed verdict on the armed robbery charge, and we move

for a directed verdict on both the specifications,

COURT: Overruled. ¢

MR. CHUPARKOFF: Your Honor, if it please the |

;

'

—F8

OFFICIAL SHORTHAND REPORTERS, Anton, Onto

497

7

COURT: They are not denying they received it. |

‘|

MR. CHUPARKOFF: There's a comment in writing. |

I don't want that on there.

MR. ZUCH: Why don't you put the Defendant's

list in, :

COURT: Showing the list you received.

MR. ZUCH: This is for the purpose of this

motion. Mek +’ is as Joint Exhibit.

(Joint Exhibit 1, Letter, is marked

for identification.)

MR, ZUCH: A letter dated Narch 3, 1975, to

Mr. Theodore Chuparkoff from James A, Rudgers is marked

as Court's Exhibit No. 1 for the purpose of this motion;

ont 2 have a carbon copy or photostat of a letter sent

to Mr. Chuparkoff. This is a carbon copy that went to

Mr. Parke. It will be marked Joint Exhibit 2. That is

dated January 29, 1975.

(Joint Exhibit 2, Letter, is marked

for identification.)

MR. ZUCH: This is a letter dated January 29,

1975 and is two pages from John H, Shoemaker. This letter

is not signed since it is a carbon copy.

MR, CHUPARKOFF: We acknowledge we received it,

MR, ZUCH: These exhibits also, I assume, can

be used by the Defendant to indicate we did not put on |

our witness list, by inadvertence, Patrolman Ron Davis, |

OFFICIAL SHORTHANO REPORTERS. AKRON, OnIO

———— ——— —- — -

jand not accidentally.) Purpose and intent mean the same

L=

committing or attempting to commit aggravated robbery.

I have used the word “purposely"™ or "purpose".

Purpose to kill is an essential element of the crime of

aggravated murder. A person acts purposely when it's his

| .

specific antention 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 intent to kill Joseph Eshack, Jr.

Now, purpose is the decision of the mind to do

an act with a conscious cetectin of producing 2 specific

result. To do an act purposely is to do it intentionally

en

—e

thing.

The purpose with which a person does an act is

known only to himself unless he expresses it to another

or indicates it by his conduct. The purpose with which

@ person does an act is determined from the manner in

which it is done, the means and method and the weapon

used, and all other facts and circumstances in evidence,

If a wound is inflicted upon a person with a

(ee

deadly weapon in a manner |calculated |to destroy life, the

—_

purpose to kill must be inferred from the use of said ~

circumstances of an! unlewfal killing

GS

weapon, Both an inference of intent to kill and an

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inference of malice may be inferred from the facts aah

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where a deadly weapon

OFFICtA. SRORTHAND — - aS. AnRON, Onto

writing to the Court.)

see *& * *

(The Attorneys are present with the Court) (Zuch and Parke)

COURT: The jury has asked me to repeat the

relationship between aggravated murder and the specifi-

cations as to their obligation in regard to both.

Everybody is present in the courtroom and I'd

like to perhaps go over with both of you exactly what I

should say.

MR, ZUCH: I think that you should say they

have to determine the facts. Their obligation is to

determine the facts as they relate to the specification.

COURT: Yes. What else? Anything else?

How about you, Chuck? What do you think I should tell

them in relation to what Fred has said?

MR, PARKS: I think that you could re-read a

portion of your charge relating to that. It would be

permissible.

COURT: Well, you see what you're doing then

is reading it out of context. That's the danger of that.

I think if you two could agree on a statement -- I'll do

what you fellows want me to do,

MR, ZUCH: I think the relationship of the

specification to the aggravated murder is not their

OFFICIAL SHORTHANO REPORTERS. AnrOon, Onto

81

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specifications.

COURT: Yes.

MR, CHUPARKOFF: It's in my. judgment after

consulting with Mr, Parke and my client, Mr, Edwards —

Mr, Edwards relies upon my judgment, although we have

made our exceptions and timely objections in this trial,

that we would object to any further instructions to the

jury.

COURT: You think that's fair to your client?

MR, CHUPARKOFF: It's my judgment, and Mr.

Parke's judgment.

COURT: I'm not questioning that. I think,

when you made that decision, you think this is fair?

MR, CHUPARKOFF: In the best interest of our

client,

COURT: The State's rosition?

MR. ZUCH: The State agrees with whatever the

wishes are of the defendant and his Counsel.

COURT: Then we will not. I will so instruct

the jury.

MR. CHUPARKOFF: Thank you, Your Honor,

** ek ke

COURT: They want the tape recorder. Do you

want them brought back in here or run it in the jury

room?

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venue is not proven, then this Court has no authority

to listen or you as jurors to decide this case,

If you find beyond a reasonable doubt each

and every element of aggravated murder and return a

verdict of guilty, it is your duty to deliberate further

and decide the additional factual question which I have

read to you, Specification l and Specification 2,

And as to these two specifications, if you

arrive at that particular consideration in your deliber-

ation you must decide each and evens element of these

or any one of these specifications beyond a reasonable

doubt,

In the event in your deliberation you find that

the State of Ohio has not proved beyond a reasonable doubt

Specification 1, or Specification 2, or Specifications 1

and 2, and you find through your deliberation that the

State has failed to prove aggravated murder as stated in

Count 1, then and only then you will ecountéee a lesser

included offense, that lesser included offense being

involuntary manslaughter,

The Court wants to say to you if the evidence

warrants it, you may find the defendant guilty of a crime

lesser than that charged in the indictment. However,

notwithstanding this right it is your duty to accept the

law as given to you by this Court and if the facts and =

.. .

OFFictad SHomTHanc econ AKRON, Onto

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prejudicial error to repeat it again, among other things.

COURT: For the record, they have said that

nobody can remember what the specifications say. That’s

all they want done, Don't want any explanation, just

what it says. That's all.

MR, CHUPARKOFF: But for the record, I am

sure they don't remember the total charge the Court gave

them anyhow. In all of the experience that I have, it's

very difficult to remember the total charge. Now, the

Court has read the indictment,

MR, ZUCH: The State concurs in just reading

the specifications,

COURT: Just the specifications, They don't

know what the language of the specifications says.

MR, CHUPARKOFF: Object. But go ahead.

COURT: Let the record reflect that the

defendant has been present all the while.

(WHEREUPON, at the door of the jury room, with all parties in

hearing distance, )

COURT: As I understand it, you have asked me

to read Specifications 1 and 2, is that correct?

JURY FOREMAN: Yes.

COURT: It says here: Specification 1: That

said offense was committed for the purpose of escaping

detection, apprehension, trial or punishnent for another

offense committed by the defendant, to-wit, aggravated

84

robbery. That's Specification No. l.

Specification 2 says: That the offense

presented above, the killing of Joseph Eshack, Jr., was

committed while the said defendant was committing or

attempting to commit, or fleeing immediately after

committing or attempting to commit aggravated robbery.

M2, CHUPARKOFF: Note our objection, For

the record, I want to again make sure that the record

indicates Counsel for the Defendant objects to the Court

answering any request by the jury to read the specifi-

cations.

MR, ZUCH: For the record, solely the

specifications were read, not the charge.

MR, CHUPARKXOFF: I want to make the point in

view of the fact that the indictment is not evidence,

The only reason why we are here is very prejudicial

because unless in fact you read the whole charge, you

are emphasizing a particular part of it,

Does the record reflect that about 5:30 the

jury had a question to the Court, and reconvened at 7:30

and the Court asked Defense Counsel whether or not we

would concur in answering the question for the jury.

And the Defense Counsel refused,

OFFICIAL SHORTHAND REPORTERS. ARRON, Onto

————

MR, ZUCH: Let's bring them in,

MR, PARKE: Why? Does it have to be run in

the presence of the defendant?

COURT: I never do anything without the

defendant being present. It's his case, He's going to

hear everything going on,

MR. CHUPARKOFF: Couldn't we get another

cassette and transpose whatever is on that, then give

it to the jury?

COURT: They'll only play it once.

MR, PARKE: Your Honor, I have done that.

MR, CHUPARKOFF: He has a tape recording of

just the confession, He does.

MR, ZUCH: I don't know how clear it is,

COURT: Where is it? Do yeu have it?

MR. PARKE: I have the tape, yes.

MR, CHUPARKOFF: You have the cassette.

COURT: Do you want it set up there or out

here?

MR. ZUCH: Out here.

(WHEREUPON, at 7:55 P.M., the jury are brought

into the courtroom, )

COURT: For the record, You are requesting

that the statement of the defendant be played back again

in its entirety, is that correct?

Od

COURT: Let's proceed, Gentlemen,

WR, CHUPARKOFF: Yout Honor, if it please the

Court, in view of the fact this is mitigation, the

Defendant goes first? What's the procedure?

COURT: The Court would prefer that you go

first. The Court has to be convinced by the preponderance

of the evidence in relation to the mitigation, of three

grounds of mitigation. And the Court is going to allow

you all the leaway necessary.

MR, CHUPARKOFF: Of course, the Defendant

has the burden of going forward, is that correct?

COURT: Correct.

MR, CHUPARKOFF: Your Honor, if it pleases

the Court, so that the Court can follow the evidence, we

expect at this hearing to prove by the preponderance of

the evidence that my client, Floyd Edwards, suffers fron

a mental deficiency and we think, Your Honor, that the

™~

evidence will prove that because of his mental deficiency

he could not have been required to exercise that degree

of judgment that a normal typical person might be requirei

to exercise. And for that reason, Your Honor, I think

the Court will ultimately spare Mr, Edwards from the

electric chair.

COURT: All who are going to testify in this

case, would you take a seat inside the rail.

OFFICIAL SHORTHAND REPORTERS. AKRON. Onto

87

———————

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the smaller the number, the further away he is compared

to this average I1.Q. of what, 93 to 100?

A smaller number places him in a different classification,

yes. |

All right, If his 1.Q. — ® person of Floyd Edwards’

age and training and background, was 85, how would you

classify him?

Dull-normal,.

——

Sorry?

——»

Dull-normal?

—SS ap

Yes.

—_—_

And if his 1.Q. was 80, what would you classify him?

Dull-normal.

All right. if it was 79?

Borderline,

Borderline to what? Do you mean borderline on insanity

or what?

Borderline to what is termed in some cases mental

—_—_e

deficiency.

A

If it was 79, you say?

Uh huh,

How about if it was 757

Borderline.

———————

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Well, then how would you classify the 72 1.Q. of Floyd

Floyd Edwards" Fall-Scale I.Q. was 76.

When you say Full Scale I.Q. that throws me a little bit.

I don't know what you mean by Full Scale?

Full Scale includes Performance Scale and Verbal Scale.

So then you come up with two scores, igs that right?

Yes.

What was his Verbal 1I.Q.?

His Verbal Score was 40. I don't have his 1.Q.

And what was his Performance Score?

29.

And from those you cannot tell me-—

Yes, I can, Verbal 1.Q. 81; Performance 1.Q. 72.

nel

Edwards on the performance portion of the test?

I don't believe you can classify one portion of the I.Q.

to total 1.Q., which is the total valuations nade.

But anyhow you are indicating, of course, that the result

of your examination, his I.Q. was what?

Which I,.Q. are you speaking of?

—— ae

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Well, I'1l1 strike the question. After examining Floyd

Edwards, what do you say his I.Q. is?

From the scores we obtained on the test it is 76.

And what is the average 1.Q. that you would expect @&

normal, average, intelligent individual, his age, and

whatever factors you would consider in evaluating Floyd

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could read at’ not necessarily reflect I.qQ. |

Not necessarily?

Yes.

Might? .

Yes,

You might even get a lower level than 76; you might get

72 or 68, isn’t that true?

No. That's not true.

Would you say that based upon your test, that Floyd

_ Edwards is lacking in a mental capacity?

According to the—

Yes or no?

>,

MR. ZUCH: Your Honor, this is his witness.

MR, CHUPARKOFF: Not my witness.

COURT: That's all right. You can cross

examine him,

Well, then if Floyd Edwards is lacking in mental capacity),

which you have just said yes, you agree to; then obviously

that means that he is deficient in mental capacity, isn’t

that true? |

No, sir.

All right. But if you are deficient in something, no

_matter what it is, isn't that a synonyn for ' the word

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“leck" and if you say it's not a synonym for the word

“lack,” tell me the difference between being deficient

and being lacking?

A person can lack something from 100%. A person with an

I.Q. of 120, lacks something that a person with an I.Q.

of 180 has, but it doesn't mean he's deficient,

Just a minute. Okay, Mr. Reinhold, the Court will have

to make that determination. You have indicated to me

that Floyd Edwards is lacking in mental capacity?

Yes.

We are not asking the degrees that he's lacking. Right?

Now, if he's lacking in mental capacity, I want to

substitute the word "deficiency" for “lacking.” I tell

you they are synonyms. Therefore, if lacking in nental

deficiency, he is deficient in mental capacity -- not

degrees now, but isn't that a fact? You will agree with

that, won't you?

I woa't agree, I can't agree.

You do agree he's lacking in mental capacity?

ees

Yes.

Do you agree he lacks the capacity to compete in the

normal, average stream of intelligence on a day-to-day

basis?

No, I don't believe that.

You don't believe that? You indicated that he had aa

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of points?

A Yes, sir. .

Q And that 72 could really be 70?

A Yes, sir.

Q It might even be 697? There's no hard, fast rule, right?

A Yes.

Q Despite the fact that you show Floyd Edwards with an

I.Q. of 76, you readily admit he could have an I.Q. of

74 or less; 72 or 70, isn’t that right?

A Could be.

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you show an I,Q. of 72 or 76, it could fluctuate a couple

MR. CHUPARKOFF: I have nothing else.

COURT: You may inquire.

CROSS EXAMINATION BY MR. RUDGERS:

Q Mix, Reinhold, you submitted a report to the Court based

on your examination of Floyd Edwards satebies to the

Wechsler Adult Intelligence Scale, is that correct?

A Yes.

Q Do you have a copy of that?

A Right here.

Q I ask you to refer to it, if you could? On the first page.

at the bottom, you indicated the Verbal 1.Q. was 81 and

the Performance 1.Q. 72. Do you average those to reach

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of academic stimulation and school success." Explain |

that?

Low Scores were Information, Arithmetic Sub-tests, which

indicates he might not have had sufficient contact with

the school experience.

So again that would indicate that those sub-tests that

he scored low in were related to things that he might

have learned in school as opposed to common sense and

ability to reason?

Yes.

Now, the term "mental deficiency” has been used, Hr.

Reinhold, and the term "mental retardation.” When you

ntetatutes an intelligence test you cannot -—— isn’t it

a fact you cannot determine solely from that test whether

someone is mentally deficient or not?

The overall performance we cannot say mentally deficient;

A . Not necessarily.

a"

have to go by the I.Q. legally.

von say the I.Q. Score of 76 does not indicate in any

way whatsoever that the person would — mentally deficient}

Other factors would come into play, such as interviews or

other tests that might be administered, projective tests,

anything like that, the person's background, things like

that, is that correct?

L?

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You're telling me this can change?

It can fluctuate either way.

Fine. It can change?

Either way, yes. .

But these can never change?

I didn't say that.

They could change?

Could change, but we are talking about the overall I.Q.

I understand that. This can change, It can go up and

it can go down. Right?

Right.

You are telling me to go into Apple Creek you can have

a 68 I.Q. and that makes you mentally retarded in the

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State of Ohio, isn't that true?

——————— —

Mentally deficient,

—_—

The upper limit for placement in State Institution for the

Mentally Retarded is 68. Is that your a

Yes, sir. |

You still stand by that?

Yes,

Then at 68 you can be considered mentally retarded and

placed in an institution?

You can be considered that, yes.

Fine, And this boy has 72, That score can go down a

little bit?

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You are going to tell me this boy does not suffer from

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mental deficiency?

Yes, sir.

We are not trying to place the blame on why he's

mentally deficient, if he is, or why he got a poor

education, if he did. You indicated a part of his mental

capacity might be the result of his environment? Is that

not true?

In part, yes.

Okay. Do you know about his environment?

In part, what he told ne.

All right. In other words, his environment which

evidently from whatever— strike that. Tell us about |

his cavtacnmentt?

Well, he was brought up — his father died and he was

gent out of the home, He lived by himself while he went

to school. Me was in a slow-learners class at school.

He found it difficult to attend school because he had to

get up every morning, but he did manage to go to school.

Hie worked as a dishwasher and various other things.

Needed money for food?

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No. They have stated on here, “mentally disqualified;

not qualified for induction.”

CROSS

In other words, the military records of the United States

Government indicate that after Floyd Edwards took a menta

examination to get into the military, the United States

Government said he was mentally not qualified, is that

correct? |

Right.

You say he got a score of 3?

Yes,

Do you know what score is required to get into the

military?

At one time it was a 10.

Are there any other comments on his records with

reference to his mental capacity or his mental knowledge?

No. There's nothing else in here. |

MR, CHUPARKOFF: I have nothing else. Thank

you,

EXAMINATION BY MR, ZUCH:

Mrs. Berthelot? ; .

Right.

Could I look at the records one second that you were

referring to? Where's the test score indicated?

Did you iudicate that Mr, Edwards did not pass the |

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OFFICIAL SHORTHANC REPOME RS. Axmon, Onto

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physical examination or that he did?

A No. He passed the physical,

Q Aud he tailed the mental examination?

A Right. P

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Q Do you know whether the mental examination was given

orally or in writing?

A I believe it was given in writing.

Q So it would be safe to assume that you would have to be

able to read and write to pass that examination?

A Right.

MR, ZUCH: Thank you. I have no further

questions.

MR, CHUPARKOFF: I would, Your Honor, want

to mark -- get a copy of this because I don't think we

need the original. This is an exact copy of his records,

is that right?

A Uh huh, I haven't checked them, so I don't know what's

inside, .

MR. ZUCH: As long as she says that's the

official record, that's fine with me.

| MR, CHUPARKOFF: Your Honor, can we have

somebody run a copy of this off?

MR. ZUCH: Your Honor, may I ask one more

question?

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and overseeing of the two classrooms at the Juvenile

Court. e

" Q Have you on occasion taught school at Juvenile Court?

A For the last seven years.

; Q In that capacity did you have occasion to tutor or teach :

Floyd Edwards?

é A Yes,

x Q You know Floyd Edwards?

; A Yes,

: Q What year was it that you in some fashion taught Floyd

Edwards?

A 1971,

Q For how long a period of time?

A I think it was almost two months, I'm not really sure.

Q You, of course, remember Floyd Edwards?

A Yes, I do.

: Q Do you have a file of some of his work in your possession

or would it be in Mr. Liggins' possession?

¥ A Mr. Liggins had it.

(Defendant's Exhibit B, file on

; Floyd Edwards, is ma>}.ed.)

\ Mrs. Verde, I have a file that's just been given to me

by Jasper Liggins which I understand may contain some

Work and some results--

A Uh huh,

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That means if he were — well, it means that he_is

Tell us if you had any difficulty trying to tutor or

teach Floyd Edwards and what was his capacity to learn?

Ployd was a@ very proud young man and he would not admit

that he had ‘o- eetitien. When I tested him on the Wide

Range Achievement Test he scored 2nd grade 4th month in

reading ability.

I don't know what that means?

reading on a second grade level.

In 197}? —

Yes, and he was a junior, I think, at South High at that

tine.

Again, he was a junior at South High, in your judgment

based upon the test he was reading at second grade level?

That's right.

“—

That's not normal, is it?

Ye,

What else?

He was the kind of pouns man who would like all of the

textbooks that he normally used in school. At Juvenile

Court we try to work on the young person's level, and it

was very difficult for him, I think at the time he was

taking biology. It was very difficult for him to read

the textbook. He coulda) t understand it, but he wanted

to have the books right there so that he perhaps could

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prove to himself that--

? Q He tried to convince himself that he was intelligent?

: a That he was working on his own grade level. He hated

By to admit that perhaps he had_ some problems.He knew it

2 but he didn't want anyone else to know it.

2] Q Did you give him any other test?

a a No. That's the only one I gave hin.

: : Q Were there any other tests in his file that you know of?

; A Not that I know of.

; Q Based upon the two months that you taught Floyd Edwards .

: would you say that he had normal, average intelligence or

a he was lacking in normal, average intelligence?

; MR. RUDGERS: Object.

: COURT: Sustained,

yf Q Do you have an opinion whether or not he had the capacity

A. to learn at his grade level?

: MR, RUDGERS: Object again.

‘ COURT: Sustained.

; x Was he able to do junior work in high school?

A No.

~ You're saying he has difficulty in reading?

A Right.

y Do you have an opinion whether he had difficulty in

understanding you in the use of words? For instance, if

a | ‘ _ Is said to Floyd Edwards, do you a want to waive your rights ‘

4 OFFICIAL SHOnTHand REPORT, Axron. ome ~ oo

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do you have an opinion as to whether he would be able to

understand what I meant by that?

He wouldn't understand that, no.

The word "waive" would be too big for him?

MR. RUDGERS: Object.

COURT: Sustained.

MR, CHUPARKOFF: Am I permitted to ask her if

she has an opinion of mental deficiency?

COURT: You didn’t qualify her as to being an

expert. The only thing she can testify, she’s a teacher.

She can tell what they did and the relationship at school,

how he responded at the school, and things of that nature}!

Mrs. Verde, I think you have in the file copies of some

of his work, do you not?

Yes.

Pull them out and give them to me.

(Defendant's Exhibits C thru F,

Papers, are marked, )

Mrs. Verde, I have marked some exhibits as Defendant's

Exhibits C, D, E, and F, just for the purpose of identi-

fication. I ask you to look at these and tell me what

they are? |

They are examples of English themes. Usually we have a

topic on the board every day, and there is some discussion

and then the young person is requested to write a paper

101

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Right. That gives me an idea whet I can expect of hin.

What was the extent of your formal education?

I have a Bachelor's Degree from Akron University.

Majoring in what? —

Elementary Education,

You have been at the Juvenile Center seven years?

Yes.

Was Floyd, based upon his mental capacity -— whatever

CROSS

that is — typical of the average student you would

expect at his age?

_—

When you say he wasn't typical, was he above normal or

<— ——

below normal?

Ne

Below.

”~

Would you classify him as a slow learner or in the

ee a

regular category?

Slow learner,

MR. CHUPARKOFF: I have nothing else. Thank

you.

EXAMINATION BY MR. RUDGERS:

Mrs. Verde, did you say you administered the reading test

to Floyd Edwards?

Yes, I did,

You can vouch for their walidity? You feel they were a

OFTictat SHORTHANO REPOETE AS. Anton. Onto

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fair and accurate test of his reading ability?

Yess.

He was a junior in high school?

Yes. "

How can you explain that? A person redds at second grade

and he's a junior in high school?

I think it's like so many times today, young people get

caught; they get passed on from year to year to year and

the basic reading ability was not there — probably not

there any where along the line, from second grade.

That's the ability -—- that's the only ability you tested

was his reading ability?

No. I tested reading, math and spelling. The test was

=

a short test to give us some idea of what they can do in

those three areas.

It's not an intelligence test?

No.

The papers that Mr. Chuparkoff had you examine, there

are grades on there as "A" and "Very good"?

Yes.

You indicated you don't take off for grammatical errors

or spelling?

No.

Those are based on his thoughts, mental processes?

Yes. 103

OF FICIAL SHORTHAND REPCO TERS ARP oN, Dui:

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And what he thought about things?

Uh huh,

You thought his thoughts were very good?

Uh huh. :

That he could think well, is that correct?

Yes. There's a lot of discussion that goes on before

we write these.

What I am saying, the grade, the good grades he got on

those were based on his ability to think and reason and

come up with something you thought was logical and

coherent and understandable?

On those topics, yes.

Even though he might not be able to read?

That's right.

MR, RUDGERS: I have nothing further.

REDIRECT EXAMINATION BY MR, CHUPARKOFF:

What kind of test score do you recall he got in math?

As I recall, I think it was about second grade level also

—.

Seems to me all three of them were. If I could look?

_—

You are allowed to look through there, yes, ma’ am,

I take that back. Reading score 2-4; spelling second

grade 6; math fourth grade fourth month.

Fourth grade math, second grade reading and second grade

spelling?

,

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Not always.

Not always?

Yes.

How long did you spend with Floyd Edwards in examining

him on the two times, approximately?

Well, the first time was a little more than an hour,

and the second time was about a half hour.

—_—_ a

And is it safe for me to say that the more time you spend

evaluating somebody, the more accurate perhaps your

diagnosis might be?

Sometimes.

And as part of your examination is it important that you

knew the background of the person? What is important?

Yes, sir. Everything is important, the background, any

information that we can get regarding the recent past,

his family background, and scholastic achievement as well.

i

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In this case, before you examined him did you have a

record or information with reference to his scholastic

backgrouml? Was that furnished you?

No. No, .¢ was not,

Okay. If you had his scholastic background would that

have assisted you?

Yes, sir.

Did you have, by any chance, for your benefit the

results of an I.Q. test that was given to him by Dr.

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Reinhold, the Psychologist of Akron, Chio? Did you have |

that information available, if you can remember? | /

COURT: You may refer to your notes, ,

Q You're allowed, Doctor, to look at anything you want?

A I don*t remember what I have exactly. No, I didn’t have :

aby I.Q. Score before that tina 1}

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you drew your report?

A Yes, |

Q You may refer to your report, if you desire, too. You |

may refer to anything you want in your file. Okay? | |

A Uh huh, | a]

Q Was your knowledge of his I.Q. Score important to you in fy

reaching your evaluation and diagnosis? a

As Yes, sir.

Q What was the I.Q. given you? | |

A The I.Q. that was given to me was Full Scale of 76. | H

Q All right, Doctor, is that average, above average, or i

below average? | i

A Well, this is so-called borderline mental deficiency or [{ye i

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retardation, according to the Diagnostic Manual here of i

the American Psychiatric Association, i P|

Q Again, are you then telling me it was below average? i"

A Below average, yes. | |

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Is between 87 and 110.

Between 87 and 1107

Right.

And his was 76, which was below average?

Right. This is called borderline mental deficiency.

Borderline mental deficiency? Doctor, would somebody —

or would Floyd Edwards, based on your examination and

based upon all the things that you know, based upon your

formal education and your training in medicine, do you

have an opinion whether Floyd Edwards would be able to

formulate the same good judgment or the same judgment

that a person of an average 1.Q. would be able to formula:

and form? Do you have an opinion?

Yes. Depends on the type of judgment that you're talking

about. In general, yes, he could.

How about other—

In certain areas he could be less able to.

To form that kind of judgment?

Right, especially under stress,

—a

Under stress he could not be expected to form the same

—

a

_——

good judgment as somebody with a normal I.Q.?

Yes. |

Doctor, I am looking at a copy of your medical report

to the Court and I am looking at the next to the last

paragraph and in it you say that -- or do you say? Do

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You are right.

If you have a low I.Q., it has a tendency to affect your

ability to have good judgment?

You are right. -

Then because of his low I.Q., it follows then he does

not have the ability to exercise good judgment?

ae

You are right.

Now, incidentally I am not saying that Mr. Floyd Edwards

is insane and I'm not saying he's mentally defective,

I'm not trying to get you to say he don't know right from

wrong, but I am trying to establish whether or * based

upon your medical report and your examination « based

upon your 1.Q., whether this boy is mentally deficient?

And you say he's borderline?

Yes, sir.

MR, CHUPARKOFF: I have nothing else.

EXAMINATION BY MR, RUDGERS:

Doctor, could you start off by giving the Court your

definition of mentally deficient?

Okay. I will refer primarily to the so-called DSM-II

which is the latest edition of this Diagnostic and

Statistical Manual of Mental Disorders made by the American

Psychiatric Association. According to it, mental

retardaticn—

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By the ~«. 20", you used the word retardation rather

than deficiency. One point of clarification, when you

eter to mental retardation, you are referring to montal

deficiency? Those words are interchangeable as you

understand them in common terminology among Psychiatrists?

Yes, like synonyms. "Refers to subnormal

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