# Appendix — EDWARDS v. OHIO (No. 76-6837) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2130%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1976 ## Text 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 (2) Ay at o> re f x BF A 4 re & ‘¢ a aan FER TATA BTR E BON 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 RES 0 ee pel FE 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 (4) -_ Se Sahat INS iy e. OF. = es Pe Se _, 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) e . eh = eee oe ee eer ee Ene @ owe « | wat COPY WALIBLE | ; —_———> — 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 : ' Sw Ww | wf CQ P \ er 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) i. %; ns oper. ete Mea ewer SI rcrn CSN Xe Re Re WY os > a — ee ae ed thre S824 ey . 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) —_——— > . ee = — ae wee wr "2 eo. “* -.> * . r Be - 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 - OO TT - etsikZeke. SO ee nr ag se meee tt at Miata S ale! Dalat pi aie tee et eee “er s- Poeeurrrss a tet we ie | ry 5 .* se . ’ ers . : = Speen - 6 . ~) ‘ =" @ as . e 7 XS ene ™ as FA ee - . - u eS __ . 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 > “Ae he, . ee ET a asl Tk OPA EPS “Ati~ me 2900 eet 54 — eI,’ ¢! AD eo Oe a ~~ 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. RP ee oe ee a Oe OR tae Te ee ee ee Ne ta 2 ane ei * Rela eT an Se thee Scoanee 4 aye Bs pes is vi - NS ow, . oe at ya? he -“R - o £8 a Pak ae ” eh ee ft - s i" ‘ * “ at “* . + > 4 ‘ 4 > = ae 3 ent nx - 20 - : 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 _ Mas « . ; “43 € ge wees eo ek peer fog, so yes , Court of Common Pleas... : ects “ “= Summit County, Ohio 7 - = 0 9h % OO YF ANISTL.S C42. we BTR 6 SS ,%. SOBSU.= ' -. ° | e Oz on i © is © E- oO bo wy. = - TS = 2 14 S w 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 \: ‘ i J : *- ** _- ~~ . . a *- 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 | ” : - BOOKING . | fy & ee uk Hs esi aie |* SEE We | = a O FS : O UO r 3 : ) 35 Ot ¥ & " 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 3 fs 2 || 82] 5 a¢ 0 |é | O \ Ei 8 — ae = ede ; Ss. 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 - ee re ee competent to stand trial for these charges which is GFFICIAL SHORTHAND REPHATE AS. Anon. Onto + ' wt. ee EE DS OOET - nt eae a the specifications between the specifications themselves. . 4¢ ee ¢ ‘* ’ st +e =e) % 45 yee 186 | 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 OFFICIAL SHORTHANO REPOATE AS, AnFOn, Onto oo* «+ er ee i ett ‘ : . a wie oe yah gen BBS ar Ssh ben biNente wg BSS“y Shat ays S AE MIPS eH... sii Sa Soe RS ee Re ae oa ee eS —= : = .- & PF» & 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 ee ; Qaeree— . Ye aie a ~ ‘ _—— > ’ _ 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 Se * — -_=- ——--- NT —— MR, CHUPARKOFF: All right. Now, how long was he in the Interrogation Room with you OFFICIAK SHORTHAND REPORTERS. AKRON. Onico 45 SS. gg ee ee ae a _ —m er ee ee a ee . Tass... tt (2S Se eae 2s a Wa SS Ss ES i ee ee a > _ I have a Sinilar card. | 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 = - nen —* ~~ . eee ATES Ca Sah inn 95 Lh IE OI I (RINE E LT EE BE Re —_—— ai = bad —— SESE OREN CC TS PII TE TEETH OB CY RS Be Ge” ae ge o r © PF» © » 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. oe oe yy Sl Le ee eee 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 9 : ay ¥ ev 7. i / > © PF © © 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 a a ets SSS a ee —_— ——__ === 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 bh te or wef Leelee LADD Det il, ag PP ee ee oe . . © eee ee ee ee eee —_—__--——_ - —_—= oS CL _ — SS" _ a — no i er —= = - aes — > a = : = (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 . — se _—— 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 | Pe SS a ae = Se, our case and base our defense upon what the prosecution ‘A ——— says the evidence, would have been, o= —. | | 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 ee ee Garren oe - oe 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 mw 4 t - “ ee ee ee -—~ SO HE OT FT me ee Se eee Se > ° eee em ee. ~~ on hae “—— OFFicialL SHORTHANO — mS. AKRON, Onto over in the middle of the aisle, obviously in a face-down 296 ee - . +S aS = : oi « — eres eee re + ee —— 2 ESE oe wwe = ee one ee e+e ee _——— —— ee ee ren ere we ————— ee - - ee etme ee — EEO LL LOE o- — “ete a ie nem «7 & 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 - "“ ‘~* a we “4 é ” Ls iz , ae PL: ee om ~ > eo 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, © PF © 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 > ee 2 oe — + -— — -* -_ 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 y 4 PE ee Pi > Sega Sa a“ , | 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 68 peer ee pre ———— . ~+-—— iv > : os ae tS Se hed . : - ee La hee ay eee saath cn Attn nba, Se eee ee OFPFiCtar Serer. sun meee um» 557 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 Lo : oo Sse » _ ’ -— i ee ee as we se Tr Pel -—— ee ee LT TTY ww wee ee j | f ; a 581 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 ——————— eon hme er UF eee ate enten O* Anal Or abn ee REDE Pathe? be FE ab eter at PB ph OUTER EES > © > > © >. © > ~~ = —— sc" s.F oS 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. ——————— j a _—_- -- Se er" 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 ee ee 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 OFTIctaL SHORTHAG REPORTERS, AKRON, Onto mre so’ & oO CU 2 Ae, twa o*-Pent - e* 3% > £ o >, © A Q A By Mr.Chuparkoff?f: Q Q . — a oe » * Rte ee 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 a OFFiClaAL SHOontTHano dibaceas aS. An®On Own Mae sot * Brit we ae Ne a DRT TING ee, on bd BIND nena RE tear eeiD A> Cain AIST te Wee ee ee a > o Pr - "> -—- — — “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 OFFictal SHORTHano Atronre aS. A&k®On. Onto oreo wm, =e ye 2 You don't? Isn't it a fact that despite the fact that 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. OPE STE TOE TT ae ET LP Pe a ewer 606 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 OFFrictal SHOrnTHand oe of as. Areon,. Onto = Ve 4ée ot tlle ot \ ate & MLD p29 ceri tat ’ o Aw ooops =, a >» a fe? aid el P > PLT Ot one es i. a {- ke 2 f. ° > 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? Yes. OrrictaL SworTHano Rcvoded as. Anfron, Onto ’ > yy =: 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 eee oe eS —_ 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? ee ee Pe eee ae ree + ee ee gee OFFICIAL SHORTHAND REPORTE a ee ik TOAD ssp RibA GE OAR A RS AR SR Be OSE wisp sal enti ath d be ROTEL A SOME TENET A a Ns aS om meee -—* Le = a (Nods head.) You are telling me he's borderline which means he's ee . — " —— -_——- oOo either above or below the line? ——— se ‘Right. You are going to tell me this boy does not suffer from — 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? OFFICIAL SHORTHANO nevtare aS, AKRON, Onto , - a Pa res PP - ine 0 "5 » FP ey a ‘ae .* ‘~ Se Ol ae eth te ar : SS SE se ee * Sr we _—— — ea q ————_—— - = — =. > = —— Se = —_S—"" = — ee 4 } 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, ER ee 7 OFTICtst 2unevusun Menaweer ae «0. welts + AA a de GRA FS Aa ee. heirs letra re. DO ait eg eCWL — «+. > > ff 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 99 am —— ee ee a - ea ae 626 ~ === =e = TSS Se ep 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 ee ee ee ae ee ee — ee ee 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 OFFICIAL SHOR THANO REPORTERS. AnRON. Onto — we oe *- : > > > © 629 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 > x A > 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? , OFFICIAL SHORTHAND Frog's #5. AKRON, Onto ae _—- ~* -7.eo oh ee SALAH AERA ESI SE | | 634 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 °° SP = eS 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. Orricta. SHOR THano RTE RS. ARRON, OHIO — _— = —— — . — 7 . _> -— oo Om, , wT SIe-F owe - s 4a 8 ae © o >» &2 FP & > 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 OFrictat SHomrnane ReeorrehOJacron, Outo >’. 7 =~ F* SS SSE Se ae es. --- ae ee ee ee es ar CROSS 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— 8 OFFICIAL SHOW THANO 98 ee Aen Ben i. = ae 7 . Cs or “ POP A FOS DOES” pS POT £ Wen ikcde nce a sab o> hbatsn: 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 general intellectual functioning which originates during the —_ developmental period and is associated with impairment of either learning and social adjustment or maturation, 2 eee or both.” This is a general definition. That's the definition you use to guide you in your evaluations of Floyd Edwards, is that correct? Yes, Now, your conclusion you have already stated, and that is that hir. Edwards is not — deficient, is that correct? He is borderline. Sl. Ee eee And you used the I.Q. Score as part of your -- one of the tools in making this determination, is that correct? Yes, And you also reviewed both his history and his prior background, his experiences as they were related to you through Mr. Reinhold's reports and the other reports that you observed? Yes, sir. OFFICIAL SHORTHANO REPORTE 2 OGnon, Onto — are. seem a recessive factor, : ; Q Do the genes have something to do with the person's ability to comprehend or does his mind? ) A Part of it is genes... It's a recessive trait that is transmitted. Q Transmitted? | A Yes, in a recessive way. Now, how it's transmitted usually is by generations, and here we have the family's social-economic factors and environment inference in the genes, in the great-grarndparents, Q I think the question I was really trying to direct to you was -~ if @ person is a slow learner, does that give you some opinion or some idea of his mentality? ; A Yes. Yes. Q Now, if you have two people in schcol and one is not a slow learner and one is a slow learner, do you come to i the conclusion that the one who is a slow learner suffers ; from some kind of mental deficiency? Now, forgetting } 7 about the book and the definitions, he does suffer from — nental deficiency, isn't that true? a : A Yes, mental deficiency for learning, right. ‘ Q Well, but mentally deficient, isn't that true? e F bs 5 HR, RUDGERS: I'm going to object. It's been Rete ad : " 4 asked and ansvered. cme OFFICIAL SHORTHANO REPORTERS. Khon, Onto 7. nN SESS j = = Se eh SR en em . rege } 1% | | 649 | =: = —— ——_--- ——F- = COURT: You have answered, al A We are talking about learning capacity. Q Well, does a person's capacity to learn have any affect ! Mi] } upon —- does his mind have any affect upon a person's io capacity to learn? Your brain is your motor, is it not? ih | A Yes, sir. Ry Q And people with a high I.Q. are considered to be brains because it's the brain length and the mind that make them be as intelligent as they are, is that not true? A Yes, sir, Q A person who is a slow learner has a mental problem, I'm not saying he's insane, He's lacking something, is he not? A Yes, you are right. ) Q He's deficient in something? | | A _—sCRight. | Q “He's deficient mentally? i} } A You are right. : | Q And so, therefore, if Floyd Edwards was a slow learner i | and that was a fact, you got to come to the conclusion it ) he's mentally deficient, right? | it i Shee — an A Yes, Yes, I say yes. i 1 — ‘Ti Q You are teiling me that he borders on being mentally ' retarded, is that what you're telling me? | mene OFFICIAL SHORTHANO RUebareRS, AKRON, Onto ! i Lae oe Se Se For the worse. If it does it for the worse, then that would affect his ability to function in our society, would it not? In some respects, yes. This is why they Geve Loped so-called -- following the I.Q. test, they do have vocational testing because you cannot put anyone under this group, borderline, in college because it would be a waste of tire. Not college material? Right. It would affect his ability to function in our society? a Yes, sir. “mR. CHUPARKOFF: I have nothing else. Thank you, Your Honor, Thank you very much, Doctor. MR, RUDGERS: Nothing else. COURT: You may step down. (Witness excused) “es +e *& * SSS oe eee rere eer er EE NP I Ee oe Te, eee ee > © Fr» © FF © Yes. When would that have been? Well, Floyd was in the eleventh and twelfth grades at South. ; You have the records which are available to you as Counselor? Yes, . You have the actual record? I have the Permanent [fecord Card. Once a student graduates, certain parts of the record are destroyed and the Permanent Record Card is retained. You have the Permanent Record Card? Yes. What are the things that are on your card that I asked you to bring to court today? On the card is included information about Floyd from Grade 7 through graduation in regard to the marks he received in various classes that he was in, his attendance, some I.Q. scores from 1960 and 1964, his address. In 1960 he had an I.Q. score? Yes, February 8, 1960 he was tested. What was his 1.Q, then? According to this it was 74, And in 1966 you took it again? In October, 1964, it is recorded as 70. 656 " , . 2 a Q His I.Q. was 70? A That*s right. Q And do you have a list of the accomplishments that he made in different subjects there as to the grades? A Yes, I have the marks that he made in his classes. Right. : _, What are the marks he made? ‘Strike that question. How | ) many graduated in Floyd*s class? | A There were 188 students graduating that year. | Q Did Floyd graduate? : A Yes, he did. ; Q Does it show how he ranked? OA Yes, it does, 1 Q How did he rank? / oA He ranked 187th out of those 188 students. } Q He was next to the last? | A That’s right. : Q Was that based upon achievement, grade achievement? A It*s based upon grade point average from his grades , received and various classes throughout grades 9 through gs, | | Q Give us what grades he received? A —_—— Well, for his first three years of high school he was graded as all students are, on the scale fron A, B, C, D and F; and then there's an additional grade that is sometizes used, called a "P,"” The "P” stands for passing| Orrictat SworrHsnD 5 iig*””* £.Rn¢ Orio i] | 2% £22°..%4 vu. eae °c, een tO ee eee. eee OE wr In the 9th grade Floyd received almost entirely all "P's," indicating that the teacher felt that Floyd was working hard, that he was trying to do what was requested of him but that be had difficulty in meeting the requirements. He also received a few "F's" that year; and in the following years, in the 10th and llth grades, he received primarily "D's" which is a passing grade, the lowest passing grade possible. In his senior year the grading system war switched for Special Education students, classified as slow learners, toa "Satisfactory" and “Unsatisfactory” mark; and that year Floyd received all Satisfactory marks except for "F" in Physical Education. Does that mean that he was satisfactorily completing the course achievement-wise or that he was working up to his ability? That means that in the judgment of his teacher he was working up to his capability, and in her judgment— WR. RUDGERS: Object to all of this hearsay. COURT: Yes. Does the card indicate whether Floyd was a slow learner or not? Do you know that for a fact as to whether Floyd Edwards was a slow learner at South High School? He was classified as “slow learner", yes. _Can you define that particular classification? _ OFFICIAL SHORTHAND ree Ao} RS, AKRON, Onto oT ee Ab o rr» © PF CROSS When a student'is referred for testing or if his teacher oumesste that a student might be eligible for a slow- learning class, he is referred to the school psychologist who then performs the testing. When a student tests below the I.Q. of 80, he is eligible, and upon consent of his parents may be placed in what is commonly called EMR Classes, Which is what? Educable Mentally Retarded. He was classified as Educable Mentally Retarded? That is what we call that particular class, yes. You are saying then that his records indicate that he didn't function as a normal student, is that true? Is that a gafe statement? It's difficult to define “normal” but yes, I would agree with that. . I°li mark your record for the record, and then I have nothing else to ask you. (Defendant's Exhibit G, School Record, is marked.) EXAMINATION BY MR. RUDGERS: Miss Becker, how long have you known Floyd Edwards? Maybe I should clarify something, I was not Floyd's Counse or, but I did know him while he was enrolled at 116. | OFFICIAL SHORTHANO REPORTE *S. AK®On, Onto r © rr» © FPF O&O F 8 o & obo rp & Fr & F&F O&O PF South, and I would say I knev him while he was there about two yoars. Did you ever counsel him? I talked with him on a casual basis. Did you ever counsel him? Yes or no? No. You just knew him casually as & student in the school? Yes. When was he put in the slow learner class? May I see the record again. The first indication of it on this card was in the 8th grade in 1968. In 19687 That's what this card indicates. Well, is it a fact that's when he was put in slow learn- ing classes or not? I can't attest to that. ‘ He graduated from Akron Public School system? That's right. He's a high school graduate? ‘He is. Is that correct? He's considered to be a high school graduate, yes. ir, Chuparkoff asked you what a "Passing" grade meant and you gave a definition. You don't know for a fact that what you stated was why he was given a wpe. do you? Orrictar wen, etl "3. Anxron, Onto i] PRES IAG, cH. —— : Th Pa COO ot 8 Re er grr reg ee ee LA a ae Seat os — —- on ee eS ae ee ere ~ © © . of 76, you have changed your opinion today with reference = a. - = _—— i = a ’ “ " Se Sa es oe COURT: Go ahead. Puta question. Based upon Dr. Reinhold's report that you have in your possession which indicates that bir. Edwards has an I.Q. to whether or not Floyd Edwards is of average intelligence or not, true? It’s slightly lower than what I thought it would be. No, Doctor, yes or no? Yes. You changed your opinion? (Nods head.) Are you telling the Court that you were wrong in your first evaluation of his average intelligence? I overestimated it. Were you wrong or were you right in your judgment? COURT: Give me some credit fc. having nastReaveee when listening to the answer. I can come to my own conclusion, I'm not a jury and have to be spoon-fed. All right. Now, what do you say his intelligence is? Borderline? Possibly borderline; little bit below the average intelligence, Since you formulated an opinion based somewhat on this number 76, Mr. Reinhold gave you, what is the average = > —-2e — ee ee SS TT i iy ct a OFFICIAL SHORTHAND REPORTERS, AxPon, Onto 124 f —_ > 288s SS 2 Soe > > © I.Q. that you would consider to be average? What is the average I,.Q. that I would consider? That is, that number range? For average? ‘ Yes? From about 90 to 100 or 110, That's about average? Uh huh, What would you classify somebody with an 85 I.Q.? It*s again on the fringe. That's on the borderline. Eighty-five is on the borderline? Yes, What would you consider 90? Borderline? I think it's 68 to 85 is borderline. Borderline what? Borderline mental retardation, @us Pe eT ee ee eee gta seb Sot eye oe Sie Res Sh aoa ot YS Sees ee Spee ew pe PPE AS Hal Ea « ee © Now, you are indicating that an 1.Q. of 68 to 85 is borderline mental retardation? aa Right. You are telling me that's not average; that's nehew average? That's below average. Am I to assume Floyd Edwards is below average mentally based upon the numbers? Based upon the numbers alone, yes. — — — + OFFICIAL SHORTHAND Aggy re RS, APRON, Onlo -—— below average mentality? MR. ZUCH: Object; either mentality or intelligence quotient? MR, CHUPARKOFF:* Mentality we're talking about now, Your Honor. COURT: Can you answer the question, Doctor? No, sir. I can't because it's just— COURT: All right. You can't answer the question. Does the I.Q. have any indication to you in psychiatry about a man's mental capacity to learn? You take that in consideration, but it's the overall picture that you see, I don't want to argue; just talking about that as applying to Floyd Edwards? That fact alone? That fact alone? Yes, it would indicate he was borderline intelligence, right. Wait. Would the fact that a person is between 68 and 65 ; the person is 76 -- would that indicate to you that he below average mentality, yes or no? 5 — Yes. Now, if Floyd Edwards has 76, which is below 85, it follows that he is below average mentality, yes or no, 7 = : Samines hascepine Some rs = —_ _ ; Cay Wy Tere eae wT" A FEED an Sr FE dt SF eet Ss Bre Ew emeeiny pat ee ee a ee ee ee ie dtin stews ee ee Oe consulted and discussed a particular case; and Floyd Edwards stood out because of certain things. First, he was a slow learner and Miss Verde at times draws on my experience in that particular field to enable her to carry on end plan a progran. What are some of the things that made him stand out? Well, to me one of the things that stood out was that he was oxtremely defensive about revealing what he thought of himself. in other words, I'm going to use a word and I don't mean to offend Floyd, but there was one thing. This happens very often, incidentally. We put on a front; we try to protect ourselves by not revealing some of our faults or what we think to be faults and the impression I got was that Floyd was trying to cover up for his own mental retardation; to use a more common word, and I don't mean offensively, his own stupidity. He was, I think, painfully aware that he was not like other people. Now, Mise Verde said something about being tenth grade level, whatever it was; but the thing that stood out in my mind was that he wanted his tenth grade books on his desk. Now, I heard him read, and for all practical purposes, I wouldn't cal] him literate, In other words, he could read some signs; he could read second grade material. Perhaps if stretched a little —— ee ee ee ee OFFictay SHOR THANO TERS, ARROW, Onto ms bit, he could comprehend something on the third grade level. I don't think he could read every word, but he was a very poor reader; but he didn't want others to know it, so he would have the other textbooks and pretend he was capable of mastering them. Now, he knew what many of us do not know. He was incapable of learning in the game manner, sane extent as others. Another thing that stood out, Floyd was very strongly motivated. Now, what happens very often when a child is unsuccessful in school he may stop trying to | learn. He will give up. We will find some kids will say I just can't learn, I'm too dumb. In doing that, & person then quits trying. Our major objectives as teachers is to motivate the child to learn. See. He already had it. I don't know what his previous expertoncg was, but he never lost the desire to learn, but here he stood out, This is one reason I remember hin, It's unusual to find someone strongly motivated, It was the army tests he was preparing for. I knew when he was preparing for the arny. It was a waste of time just based on his knowledge of reading and the math and spelling. He didn't stand a chance. We couldn't discourage him, you know, miracles do happen; but based on 25 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2130%3A2. Public record. Not legal advice.