Petition — PERRYMAN v. OHIO (No. 76-6985)

Supreme Court brief1977

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1976

No. 76-6985

William Perryman, Petitioner

1,-b9ES

-~Vvs-

STATE OF OHIO, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

OHIO SUPREME COURT

Stephan M. Gabalac Albert S. Rakas

Summit County Prosecutor

City-County Safety Building Margery B. Koosed

Akron, Ohio 44308

Robert J. Croyle

Counsel for Respondent

Richard L. Aynes

Appellate Review Office

School of Law

The University of Akron

Akron, Ohio 44325

Parke G. Thompson

Attorney at Law

713 Centran Building

Akron, Ohio 44308

§& Ai 3D - 9).

William F. Calhoun

Attorney at Law

141 E. Main Street

Kent, Ohio 44240

‘ Counsel for Petitioner

Citation to Opinions Below. ...++-+-+e++#e#e-s

Jurisdiction .

Questions Presented ...+4+4+++s++se8eee

Constitutional and Statutory Provisions Involved

Statement.

INDEX

Reasons for Granting the Writ

I. This Court Should Grant Certiorari to Consider

Whether the Ohio Capital Punishment Statutes and

the Sentence of Death Given to Petitioner Violate

the Sixth, Eighth, and Fourteenth Amendments to

the United States Constitution ....+e+++-+e-+e-s

Summary of the Ohio Capital Punishment Statutes .

The Ohio Statutes Violate Petitioner's Fourteenth

Amendment Rights by Placing the Burden of Proof

upon him with Respect to the Issue of Degree of

Culpability and Resulting Pumishment ......

The Ohio Death Penalty Statutes Violate Peti-

tioner's Sixth, Eighth and Fourteenth Amend-

ment Rights to a Trial by a Jury of his Peers...

The State Has Established No Compelling State

Interest which Would Justify Depriving Peti-

tioner of his Fundamental Right to Life.....

This Court Should Grant Certiorari to Consider

Whether the Mitigation Factors Listed in Ohio

Capital Punishment Statute Are Unconstitu-

tiomally limited ...«6.secereceveveevceee

The Ohio Courts Have Failed to Properly Review

Ohio's Death Penalty Cases .....24++ see es

Ohio Capital Sentencing Procedures Impermis-

sibly Penalize Exercise of the Right to Trial

by Jury. «eee eevee eeeeeee eee

The Ohio Statutory Scheme for Capital Punish-

ment Contains a Substantial Risk that Capital

Punishment Will Be Inflicted in an Arbitrary

and Capricious Manner .....4++s++++s++e+#+e+#e6ee

Il. This Honorable Court Should Grant Certiorari to

Consider Whether the Trial Court's Admission

into Evidence of the Testimony of a Police Detec-

tive Concerning a Confession of an Alleged Codefen-

dant Made to a Fellow Officer, and that Fellow

Officer's Experience when Confronting the Peti-

tioner with the Confession which Implicated the

Petitioner as the "Triggerman"™ in a Crime in

which He Had Continually Denied any involvement,

Was Violative of the Petitioner's Sixth and Four-

teenth Amendment Right of Confrontation when

Neither the Fellow Officer nor the Alleged Accom-

plice Testified at Trial; and Whether This Was

Reversible Error in that It Contributed Substan-

tially to the Petitioner's Conviction and There

Was No Other Overwhelming Evidence of Guilt ...... «+

Page

NWN Fe

. 18

Til.

Conclusion

This Honorable Court Should Grant Certiorari to

Consider Whether the Admission into Evidence in

the Prosecution's Case In Chief that After Re-

ceiving Miranda Warnings and During the Course

of Interrogation, the Petitioner Exercised his

Rights to Remain Silent and to Confer with Coun-

sel, So Penalized the Petitioner for Exercise of

Said Rights, that He Was Denied the Protections

of the Fifth, Sixth, and Fourteenth Amendments .... 45

This Honorable Court Should Grant Certforari to

Determine Whether, When Identificatiom Testimony

Is Sought to Be Admitted at a Capital Trial,

Stricter Scrutiny of Such Testimony's Relia-

bility is Required to Meet the Demands of the

Fourteenth Amendment Due Process Clause, and

Whether, in any Event, the Due Process Clause

Mandates Exclusion of the Identificatiom Testi-

mony Herein... 1.2 seseeeveeveneessese @ 52

* . . . . . . . . . . ° . . . . . . ood . . . . . . . . 61

TABLE OF AUTHORITIES

Andres Vv. United States, 333 U.S. 740 (1946) -ccceccccccceccccecocecs

Atkinson Vv. North Carolina, 403 U.S. 948 CRBTEd cooccocceceeesoececes

Coates Vv. City of Cincinnati, 402 U.S. 611 CaF cccccctocecooseese

Commonwealth v. O'Neal, 339 NE 2d 676 (Mass. 1975)...

Baker Vv. United States, 357 F2d ll (5th Cir. BOG c cocccecesceceses

Barber Vv. Page, 390 U.S. 719 CAGES) o coccesecccccesocececeseoceoeces

Berger v. California, 393 U.S. 314 (1969)......sseeee-

Brown v. United States, 411 U.S. 223 (1973) ....se0e.-

Bruton v. United States, 391 U.S. 123 (1968).........

Doyle Vv. Ohio, 426 U.S. 610 CROFS) coccccccoccesooeses

Duncan Vv. Louisiana, 391 U.S. 145 CREED c ccecescoceoceceeesocceseocs

Funicello Vv. New Jersey, 403 U.S. 948 CRBRD) « cccdoocccesoseceseceoes

Furman Vv. Georgia, 408 U.S. 238 C2O7B) cc cocccccceccecs

Gardner v. Florida, 20 Cr.L. 3083 (March 22, 1977)...cesseececceees

Graynod v. City of Rockford, 408 U.S. 104 (1972)......

Gregg Vv. Georgia, 428 U.S. 153 CROIED ccccsocsoceesoes

Griffin Ve California, 380 U.S. 609 Ss6000606006060605060666606

Griffin Vv. Illinois, 351 U.S. 12 CROSS) cc cccccceccose

Harrington Vv. California, 395 U.S. 250 CREE odeeneesesoceseseeeses

Helton v. United States, 221 F2d 383 (Sth Cir. 1955)....seeeeeceees

Jackson v. Mississippi, 337 So. 2d 1242 (1976). ..cccccecccsccccsess

Jurek Vv. Texas 428 U.S. 262 ee

Lutwak v. United States, 344 U.S. 604 (1953).........

Malloy Vv. Hogan, 378 U.S. 1 Pree

Manson Brathwaite, 21 Cr.L. 3120 (June 16, 1977) wacscccececscessess s

Marion Vv. Beto, 434 F2d 29 (5th Cir. BOTS) oc cc ccedoccccoccceesecoese

McGautha Vv. California, 420 U.S. 183 CREEP a cecncceesceseseeseooese

Michigan v. Moseley, 423 U.S. 96 (1975). ..cccccccccccececcseseseecs

Miranda Vv. Arizona, 384 U.S. 436 RES se rae aCe pee

Mullaney Vv. Wilbur, 421 U.S. 684 ee

Neil Vv. Biggers, 409 U.S. 188 ee eee

People Vv. Williams, 332 NE 2d 819 (Ill. a

Pointer v. Texas, 380 U.S. 400 (19€5)....... eececeses

tii

Page

47,48

41,42,44

40, 41

48,49,50

22,24,32

19,23,30,

42,43,44

25,26,30

47,48,49

14,17,18

Page

Powell ve Alabama, 287 i ® 45 (1932) -cccccccccccccccccsccvessseces 53

Proffitt Ve Florida, 428 U.S. 242 (1976) . ccccccccccccccsesccccosece 25,30,38

Rainsburger Vv. Foglaine, 380 F2d (9th Cir. 1967). cccccccccccccccces 35

H. Roberts Vv. Louisiana, U.S. 21 Cr.L. 3076 €1977) ccccccccccccs

Roberts v. Louisiana, 428 U.S. 222 (1976)...secesesceeeceseceessees ID

Schneble Vv. Florida, 405 U.S. 427 (1972) .ccccvcccccesessceseseceses

Simmons v. United States, 390 U.S. 377 (1968) .secsecscececeeeseeees

Singer Vv. United States, 380 U.S. 24 (1965) . ccccccccccccccceccseces

Snyder Vv. Massachusetts, 291 U.S. 97 (1934) . cccccccccccseccccscsess

South Dakota Vv. Opperman, 96 Ss. Ct. 3092 (1976) coccccccccccccccccce

State

Vv.

Bayless, 49 Ohio St. 2d 75 (1976) ..ecemcscecesereeesasece

itl. Uris Oe i Oe OU... ccnceinkendaueteesees

—<— nee

Edwards, 49 Ohio St. 24 31 (1976). cccccccccccccccceseceoes

Harris, 48 Ohio St. 24 351 (1976)....sccocsscsecccsccceess

Hudson, No 35562 (Cuy. Cty. C.A. March 17, 1976) eeeeeeeeres

$. Lockett, C.A. No 7780 (Summit Cty. Cu. March 3, 1976).

S. Lockett, 49 Ohio St. 2d 48 (1976). cencecccececeeccsecs

Messenter, 49 Ohio App 2d 341 (1976). ..emcscecceececeseces

Perryman, 49 Ohio St. 2d 14 (1976) ..cccemcsesecceceecseces

Roberts, 50 Ohio App 2d 237 (1976) ..sesemesesccesevscceces

Royster, 48 Ohio St. 2d 381 (1976) ...sseweseeeeseseveccees

Stephens, 24 Ohio St. 2d 76 (1970)...sssecccececccseseeese

Strodes, 48 Ohio 2d 113 (1976) ...sesecccwecsceceresccesess

Wade, 388 U.S. 218 (1967) ...ccsececcccccmrscececesesessess

Woods, 48 Ohio St. 2d 127 (1976). ..esecseccecececscecseces

Young, 27 Ohio St. 2d 310 (1971) .cscecsewceceseseseseseses

Zornes, 78 Wash. 2d 9, 475 P 2d 109 (197D).-seesereeeecees

42,44

53,55

25,28,33

14,27,32

Stovall Vv. Denno, 388 U.S. 293 (1967) . ccccccccccceccccccecsececccecs 53

Swan v. State, 332 So. 2d 485 (Fla. 1975) -ccccccccceccccccccccccccs

Taylor Vv. Louisiana, 419 U.S. 522 A eniiinin dando

United States v. Carden, 428 F 2d 1116 (8th Cir. 1970)....-seeeeees

United States v. Ghiz, 491 F 2d 599 (1974) -ccccccwccccccccccsccccecs

United States Vv. Gusan, 549 F 2d 15 (7th Cir. 1977). cecccccccccees

United States Vv. Hale, 422 U.S. 171 CIOTS) -ccccccesccecccecocecoese

20°

Page

United States v. Jackson, 390 U.S. 570 (1968) ...cnceccecccscssesess: 3D

United States v. Kramer, 289 F 2d 909 (2nd Cir. 1961)......-seee0+- 19

Williams v. Illinois, 235 (1970)... .cceccccccccccescesesessesesesess BI

Webb v. davener, 549 F 2d 1081 (1977). .cccescccccccscccscssessseses 59

In Re Winship, 397 U.S. 385 (1970)...ccescececvcacccsessevesesssees 29

Witherspoon v. Illinois, 391 U.S. 510 (1967) ...cecccccssvecsseecees 19

Wilson v. United States, 149 U.S. 60 (1893). ..sswcsecsescecceeseees 47

Woodson v. North Carolina, 428 U.S. 280 (1976). .cccsccccececeseceees L7

Yick Wo v. Hopkins, 118 U.S. -- PPTTTITITITITITT TrPrTrTrrrrirrrerTtTe 37

STATUTES

ALA. CODE

title 14, 9314, 8320 ......... ee ee ee

ALASKA STAT.

11.15.0010, 11.15.040; . . * . * >. >. a . *- - . * . >. .

ARIZ. REV. STAT.

13-452, 13-455 > FF & fF ©€ * . > . * * a. _ — > * . .

ARK. STAT. ANN

41-2205, 2209 ..

CAL. PENAL CODE

$189, 192(2) (West)

COLO. REV. STAT.

18-3-102, 18-3-104

CONN. GEN STAT

§$53(a) (West)

FLA. STAT. ANN.

8782.04, 782.07 (West)

GA. CODE ANN.

$26-1101, 1103

ILL. REV STAT.

ch. 38, 99-1, 89-3. .

IND CODE ANN.

35-42-1-1, 35-42-1-4

IOWA CODE ANN.

35.690.2, 690.10 ....

KAN. STAT.

art. 34, @ 21-3401

KY. REV. STAT. ANN.

$507.020, 507.040

ME. REV. STAT.

title 17a, #203 .

MD. CODE ANN.

Art. 27, $388, 410

MASS. ANN. LAWS

ch. 265, $1 ° . .

MICH. STAT. ANN.

8750.316, 750.321

MINN. STAT. ANN.

8609.185, 609.20 .

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in an nw. Se se ee ae Se .

oe eee ae ee | el le. eh eel ae 6aelhUmehCUg .

eee Ss Fe Se a Oe Oe oe he Ue hu he he Oe

= = se 2 oe oe ee ee le oe Oe Oe oe

ee ee ee ee ee ee ae ae) hl Ue ee lhe lh. 6S .

ss a ef ee Se a ee lk. 6 lhUr ee

=, £2 ay 2 2 #S oe a oe ae oe oe ee Oe ee ee

. 7 > . . * . * . . . * 7 * . . .

. . . . . . . . . . * * . .

‘37

Page

MISS. CODE ANN.

97-3-19, 97-3-27 ee 6a @ i 1 Ie oe ye so @ 28 @ 37, 38

MO. REV. STAT.

§559.010, 559.070 ..... yh oe ee ee ae ae ee

MONT. REV. CODES ANN.

$94-2503, 2507 evr eeCcwwe Os 42 2 2 ee @ Oe ee 38

NEB. REV. STAT.

§28-401, 28-403 me oe Te ae oe A Oe he ll oo = a 38

NEV. REV. STAT.

§200.030, 200.070 a sk a me . . . al * . * . * . . . 38

N.H. REV. STAT. ANN. ,

$630: 1l-a, 630:2 a we ee ae ee er re FY Ss we et Or 38

N.J. REV. STAT. ANN.

2A4:113-1, 24:113-5 “ee © «© @ « ReRenrtnr wx se =. = 38

N.M. STAT. ANN.

QGAn-B-4, GObeB-G wt tt ttt tte eee ee 38

N.Y. PENAL CODE

$125.20, 125.25 (McKinney) .... cece eee 38

N.C. GEN. STAT.

814-17, 14-18 ca a.a8) + we « a 2 © 2 2 2 ee . 38

N.D. CENT. CODE

§12.1-16-01, 12.1-16-02 eet s 2 69 8 ea a 2 SS 2 38

OHIO KEV. CODE

OO0GR.68 C2OPE) 2. ce cccses ee a ee ee

OHIO REV. CODE

nn? 2. 2 ee oe eo ee eo ee Sa ee

OHIO REV. CODE

§2903.03 (1974) ....... a ee ea so

OHIO REV. CODE

$2929.02 (1974) ...... +o: bs Ole ee een oe

_ OHIO REV. CODE

Ch sae ao ae ee nee 8 C4eS es 6S

OHIO REV. CODE

$2903.04 (A) SS a a ee a eh Ul CO . * . *. . J > * * * . >. >. 38

OHIO REV. CODE

eee OU ct tt tthe eee nw étee

OHIO CONST. .

Art. IV. , $2 cl. (B) (2) * . * .* . .* * * .* — * * . > J 7

92 OHIO LAWS

233 . * . *. . . * * . * . . * * . . * * J > > . . a * 21

OKLA. STAT. ANN ;

a Ce ee oo ee ae ee a

OR. REV. STAT.

Seee-SSS, B00.000, MBB ce cc ccsesssoose &

PA. STAT. ANN.

eee Ge. Sees Geo 6 «+o 0 ect Oe ee

R.I. GEN. LAWS

§11-23-1, 11-23-3 .....

S.C. CODE

§16-3-20, 16-3-60 .....

TENN. CODE ANN.

839-2402, 2409 ....

TEXAS PENAL CODE

8 ee ae ee

UTAH CODE ANN.

title 76, 830-3, 30-5 .

VT. STAT. ANN.

title 13 ch. 53, $2301

VA. CODE

18.2-31, 18.2-32 .....

WASH. REV. COD"

89a.32.030, 94.32.650.....

W. VA. CODE

§61-2-1, 61-2-4, 61-2-5...

WISC. STAT. ANN.

$940.03, 940.05, 940.06 . .

WYO. STAT.

title 6, 86-54, 6-58 .....

°.

OTHER AUTHORITIES

Page

ABA Standard, Sentencing Alternating ......4..26.24+4ee6 20

’ and Procedures, Commentary to §1.1(c)

(Approved Draft (1968)).

Carl L. Bayless v. State of Ohio tea bi te és ee 35

Petition for Writ of Certiorari,

U.S. Supreme Court No. 76.

Borchard, Convicting the Innocent .......4.24+4+4.+4..-. 353

(1932).

Frank &. Frank, Not Guilty, (1957) ee ae ae Se a or a oe ot a ok i 53

Lehman and Norris, Some Legislative .....24+24.24+4+e+e+-e £22, 28

History and Comments on Ohio's New

Criminal Code 23 Cleve. St. L. Rev.

8 (1974).

Wall, Eye-witness Identification in ......+e+e¢-e¢ee.e4-e8 53°

Criminal Cases (1968).

Webster's Third New International .......e6.e-e-seecaes 53

Dictionary.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1976

No.

William Perryman, Petitioner

-vVs-,.

STATE OF OHIO, Respondent

PETITION FOR WRIT OF CERTIORARI TO

OHIO SUPREME COURT

—

To the Honorable Chief Justice and Honorable Associate Justices of the

Supreme Court of the United States:

William Perryman, the Petitioner herein, prays that a writ of

certiorari issue to review the Judgment and sentence of Death of the Ohio

Supreme Court entered in the above-captioned case on December 29, 1976 in

which the Motion for Rehearing was denied on January 28, 1977.

OPINIONS BELOW .

The decision of the Ohio Supreme Court denying rehearing is re-

ported at Vol. L Ohio Bar No. 7, p. 218, and is reproduced in the appendix

hereto, infra, page 1. The decision of the Ohio Supreme Court is reported

at 49 Ohio St. 2d 14 (1976) and is reproduced in the appendix hereto infra

page 2 through 10. The decision and Journal Entry of the Ohio Court of

' Appeals, Ninth Judicial District is unreported and is reproduced in the

appendix hereto infra pages 11 through 26.

JURISDICTION

The final order of the Ohio Supreme Court (appendix infra, page 1)

was entered on January 28, 1977. The jurisdiction of the Court is invoked

under 28 U.S.C. § 1257 (3). '

QUESTIONS PRESENTED

Does the imposition and carrying out of Petitioner's sentence of death

violate the Sixth, Eighth and Fourteenth Amendments to the Constitution

of the United States?

Does the admission into evidence of a hearsay confession of an alleged

accomplice implicating the Petitioner and hearsay testimony as to the

conduct of the Petitioner when confronted with said statement violate the

Sixth and Fourteenth Amendments when neither declarant is subject to

cross-examination?

Does the admissica of testimony during the prosecutor's case-in-chief

that Petitioner exercised his Miranda rights during custodial interro-

gation offend the Fifth, Sixth, and Fourteenth Amendments?

Does the Fourteenth Amendment Due Process Clause require that stricter

scrutiny be given to the reliability of identification testimony in a

capital trial and is due process violated by the admission of the

identification herein?

age 9 SFI #7 per

CONSTITUTIONAL PROVISIONS INVOLVED

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

to the Constitution of the United States.

STATUTORY PROVISIONS INVOLVED

i This case also involves the following Provisions of Ohio Law Pertaining

to Capital Punishment:

Ohio Rev. Code Ann. Section 2903.01 (1974). Aggravated murder.

(A) No person shall purposely, and with

prior calculation and design, cause the death

of another.

(B) No person shall purposely cause the

death of another while committing or attempting

to commit, or while fleeing immediately after

committing or attempting to commit kidnapping,

Tape, aggravated arson or arson, aggravated

robbery or robbery, aggravated burglary or

burglary, or escape.

guilty of aggravated murder, and shall be

punished as provided in section 2929.02 of

the Revised Code.

Ohio Rev. Code Ann. Section 2929.02 (1974). Penalties for

murder.

(A) Whoever is convicted of aggravated

mur. ~ °~ violation of section 2903.01 of the

Revis ..»le shall suffer death or be imprisoned

for : as determined pursuant to sections

2929... «ad 29° ° 94 of the Revised Code. In

addition, the ofteader may be fined an amount

fixed by the court, but not more than twenty-

five thousand dollars.

Ohio Rev. Code Ann. Section 2929.03 (1974). Imposing

sentence for a capital offense.

(A) If the indictment or count in the

indictment charging aggravated murder con-

tains no specification of an aggravating

circumstance listed in division (A) of

section 2929.04 of the Revised Code, then,

following a verdict‘of guilty of the charge,

the trial court shall impose sentence of

life imprisonment on the offender.

(B) If the indictment or count in the

indictment charging aggravated murder con-

tains one or more specifications of aggra-

vating circumstances listed in division (A)

of section 2929.04 of the Revised Code, the

verdict shall separately state whether the

accused is found guilty or not guilty of

the principal charge and, if guilty of the

principal charge, whether the offender is

guilty or not guilty of each specification.

The jury shall be instructed on its duties

in this regard, which shall include an in-

struction that a specification must be

proved beyond a reasonable doubt in order

to support a guilty verdict on such speci-

fication, but such instruction shall not

mention the penalty which may be the con-

sequence of a guilty or not guilty verdict

on any charge or specification.

indictment charging aggravated murder con-

tains one or more specifications of aggra-

vating circumstances listed in division (A)

of section 2929.04 of the Revised Code, then,

following a verdict of guilty of the charge

but not guilty of each of the specifications,

the trial court shall impose sentence of life

imprisonment on the offender. If the indict-

ment contains one or more specifications

listed in division (A) of such section, then,

following a verdict of guilty of both the

charge and one or more of the specifications,

the penalty to be imposed on the offender shall

be determined:

(1) By the panel of three judges

which tried the offender upon his

waiver of the right to trial by jury.

(2) By the trial judge, if the

offender was tried by jury.

(D) When death may be imposed as a penalty

for aggravated murder, the court shall require

a pre-sentence investigation and a psychiatric

examination to be made, and reports submitted

to the court, pursuant to section 2947.06 of

the Revised Code. Copies of the reports shall

be furnished to the prosecutor and to the of-

fender or his counsel. The court shall hear

testimony and other evidence, the statement,

if any, of the offender, and the argument, if

any, of counsel for the defense and prosecution,

relevant to the penalty which should be imposed

on the offender. If the offender chooses to

make a statement, he is subject to cross-

examination only if, he consents to make such

statement under oath or affirmation.

(E) Upon consideration of the reports,

testimony, other evidence, statement of the

offender and arguments of counsel submitted

to the court pursuant to division (D) of

this section, if the court finds, or if the

panel of three judges unanimously finds that

none of the mitigating circumstances listed

in division (B) of section 2929.04 of the

Revised Code is established by a preponder-

ance of the evidence, it shall impose sentence

of death on the offender. Otherwise, it shall

impose sentence of life imprisonment on the

offender.

Ohio Rev. Code Ann. Section 2929.04 (1974). Criteria for im-

posing death or imprisonment for a capital offense.

(A) Imposition of the death penalty for

aggravated murder is precluded, unless one or

more of the following is specified in the in-

dictment or count in the indictment pursuant

to section 2941.14 of the Revised Code, and

is proved beyond a reasonable doubt:

(1) The offense was assassina-

tion of the president of the United

States or person in line of succession

to the presidency, or the governor or

lieutenant governor of this state or

the president-elect or vice president-

elect of the United States, or the

governor-elect or lieutenant governor-

elect of this state, or of a candidate

for any of the foregoing offices. For

purposes of this division, a person is

a candidate if he has been nominated

for election according to law, or if

he has filed a petition or petitions

according to law to have his name placed

on the ballot in a primary or general

election, or if he campaigns as a write-

in candidate in a primary or general

election.

(2) The offense was committed for

hire.

(3) The offense was committed for

the purpose of escaping detection, ap-

prehension, trial, or punishment for

another offense committed by the offender.

(4) The offense was committed while

the offender was a prisoner in a detention

facility as defined in section 2921.01 of

the Revised Code.

(5) The offender has previously been

convicted of an offense of which the gist

was the purposeful killing of or attempt

to kill another, committed prior to the

offense at bar, or the offense at bar

was part of the course of conduct in-

volving the purposeful killing of or

attempt to kill two or more persons by

the offender.

(6) The victim of the offense was

a law enforcement officer whom the of-

fender knew to be such, and either the

victim was engaged in his duties at the

time of the offense, or it was the of-

fender's specific purpose to kill a law

enforcement officer.

(7) The offense was committed while

the offender was committing, attempting to

commit, or fleeing immediately after commit-

ting or attempting to commit kidnapping, rape,

aggravated arson, aggravated robbery, or ag-

gravated burglary.

(B) Regardless of whether one or more of

the aggravating circumstances listed in division

(A) of this section is specified in the indict-

ment and proved beyond a reasonable doubt, the

death penalty for aggravated murder is precluded

when, considering the nature and circumstances

of the offense and the history, character, and

condition of the offender, ome or more of the

following is established by a prepondence

(preponderance) of the evidence:

(1) The victim of the offense

induced or facilitated it.

(2) It is unlikely that the

offense would have been committed,

but for the fact that the offender

was under duress, coercion, or strong

provocation.

(3) The offense was primarily

the product of the offender's psychosis

or mental deficiency, though such con-

dition is insufficient to establish

the defense of insanity.

STATEMENT OF THE CASE

On Wednesday evening, November 27, 1974, Lawrence Busch was shot

and killed during an attempted robbery of his business, the Star Supermarket,

located in Akron, Ohio. Three months later on March 28, 1975, the Summit

County Grand Jury indicted Petitioner, Wendell Pitts, arid Delbert Richmond

on the capital offense of aggravated murder, Ohio Revised Code 2903.01(B),

with two specifications of aggravating circumstances, Ohio Revised Code

2929.04(4) (3)(7), along with one count of aggravated robbery. On June 30,

1975, Petitioner was convicted after a trial by jury of aggravated murder,

aggravated robbery and one aggravating specification.* Following a mitigation

hearing conducted before the trial judge at which Petitioner maintained his

innocence, the Court sentenced Petitioner to Death. After a separate trial,

co-defendant Pitts was convicted on all charges; however, after later deter-

mination that a mitigating circumstance existed, he was sentenced to life

imprisonment. Co-defendant Richmond, in exchange for his testimony at Peti-

tioner'’s trial, pled guilty to an amended indictment of involuntary manslaught-

er and aggravated robbery and received a sentence of six (6) to twenty-five

(25) years. Petitioner's conviction and sentence of Death was affirmed by

both the Ninth Judicial District Court of Appeals and the Ohio Supreme Court.

The operative facts that allegedly culminated in the Lawrence Busch

homicide were presented in Petitioner's trial through the testimony of Del-

bert Richmond, who had confessed involvement in the crime. Richmond's

cooperation with the police authorities found its genesis in his arrest for

an unrelated armed robbery. T. 599. Prior to this arrest, he had been

convicted for possessing stolen property and concealing stolen property.

T. 598. Richmond, in an effort to collect the promised reward offered

regards to the homicide at the Star Market, offered his testimony to the

State. T. 864. However, after the State learned of his participation in the

s |

crime, it was agreed upon that in exchange for testifying against the

*Petitioner was found guilty of killing the victim for the purpose

of escaping detention for the aggravated robbery, (Ohio Revised Code 2929.04

(A) (3)), but not guilty of killing the victim while either committing,

attempting to commit, or fleeing from the aggravated robbery of Lawrence

Busch (Ohio Revised Code 2929.04(A)(7)).

Petitioner, Richmond would be allowed to plead guilty to the lesser included

offense of manslaughter with a recommended sentence of seven to twenty-

five years in prison, T. 591, 623, instead of standing trial for charges of

aggravated murder with a possible punishment of death. Richmond testified

that Petitioner was originally from New York and that he had known Petitioner

for approximately a year, having become acquainted while staying in the same

Akron neighborhood. Richmond contended that two weeks prior to Thanksgiving,

1974, the Petitioner and Richmond formulated a plan to rob the Star Market

on Arlington Street. T. 603-604. According to Richmond's testimony, the

plan called for the owner of the Market, Busch, to be forced, at gunpoint,

into a stolen car and trancported to a designated laundromat where he would

be forced to call the store and direct the employees to give Richmond the

money from the store. T. 605.

Richmond alleged that on the night of the robbery he had accom-

panied Petitioner to the Star Market and participated in the crime but that

Petitioner was the actual triggerman.

In an attempt to corroborate Richmond's statement implicating

Petitioner, the State called Michael Alldredge, who testified that on the

night of November 27, 1974, he was at the Star Market. While he was leaving

the store, he observed an argument between Lawrence Busch and a man in the

parking lot. T. 733. Alldredge turned away and started for his own car when

he heard several shots and was nearly hit by a car speeding from the parking

lot. T. 736. Upon returning home, Alldredge called the police and gave a

very general description of the man in the parking lot who was arguing with

Lawrence Busch.

On March 25, 1975, after Petitioner's arrest and four months after

the crime, the Akron Police Detectives asked Alldredge to view six Akron

“mug shot" photos, the defendant's photo being among them. The bottom portion

of each photo had an identifying number, date of arrest, height, and weight

of each individual. Three of the photos had arrest dates prior to this

crime and the Petitioner was the tallest and heaviest member of the array.

After viewing the photos for about five minutes, Alldredge picked out the

Petitioner's photo stating that he could only be "80 to 85 percent positive"

that this was the individual, T. 738, 432, and that "all colored people

looked alike to him." T. 748-749. After Alldredge picked out a picture

| 3

(Petitioner), he was told by the police that that man in the photograph had

already beea arrested and charged in regards to the Star Market robbery.

T. 439, 441, 749.

Although lineup facilities were available for use, Petitioner

was identified, as are 99.9 percent of all identifications made by the Akron

Police Department. T. 874.

At the trial, Alldredge had difficulty in recalling the descrip-

tion he had given the police. He testified that it was dark out, T. 746,

that he only observed a side profile of the individual, and that he was

surprised, nervous, and frightened at the time of his observation. T. 859,

860. Alldredge then stated that he was about 85 percent certain that the

Petitioner was the man he observed arguing with Busch in the parking lot.

T. 738.

The State also offered testimony of Detective Edward Duvall, Jr.,

who was-present during the custodial interrogation of Petitioner by another

Akron Police Detective, Captain John Traub. Over defense counsel's continu-

ing objection, Duvall testified that Detective Traub told Petitioner that

his accomplices (Pitts and Richmond) had been arrested and that both of them

had identified Petitioner as the “triggerman." After this accusatory state-

ment, Duvall testified that in his opinion Petitioner appeared nervous and

hesitant after which he requested to speak with an attorney. T. 792. Based

upon Duvall's testimony, a timely motion for a mistrial was made and denied.

T. 325. Neither the interrogationing officer, Captain Traub, nor Petitioner

alleged accomplice Pitts ever testified at trial.

In his own defense Petitioner did not take the stand, but offered

testimony to show that he was not at the Star Supermarket the night of Nov- |

ember 27, 1974. There was further testimony that Richmond had bragged to

others about having killed someone during the robbery.

The case was presented to the jury, and on June 30, 1975, at 5:37

p-m., while deliberating, the jury requested from the Court an answer to the

following question: "Would guilt on specification number one indicate that

the Defendant was the triggerman?" An answer of "not necessarily" wae given

and several hours later a verdict of guilty was returned on aggravated murder,

aggravated robbery, and one of the two specifications of aggravating circum-

stances, namely that the homicide was to escape detention for the robbery.

Pursuant to Ohio Revised Code, §2929.03-04, the jury was dismissed

and Petitioner's case was continued pending a pre-sentence investigation and

psychological and psychiatric examinations of the Petitioner for purposes of

the mitigation hearing to be held before the trial ‘judge.

At this mitigation hearing, the Petitioner maintained his innocence;

however, no mitigating factors were found, and the trial judge oensenend the

Petitioner to death.

Petitioner timely filed his appeal in the Ninth Judicial District

Court of Appeals for Summit County, Ohio. The Petitioner raised nine assign-

ments of error. The pertinent ones in relation to the questions presented

in the petition were:

"The Defendant was prejudiced by the admission of double

hearsay statements, inculpating him, which violated his

Sixth and Fourteenth Amendment rights.”

"The Defendant's Constitutional rights, as set forth in

Griffin v. California and United States v. Nolan, were

violated. The State may not use at trial the fact that

the Defendant claimed his Constitutional privileges in

the face of an accusation."

Ill

"Photographic identification procedures are not to be

employed when suspect is in custody and a lineup is other-

wise feasible unless police can offer extenuating

circumstances justifying use of a photographic identifi-

cation."

"The death penalty is cruel and unusual punishment in

violation of the Eighth Amendment."

The Ninth District Court of Appeals found no error and, on March

26, 1976, affirmed the Petitioner's conviction and sentence of death.

Pursuant to Ohio Constitution, Article IV, §2 Cl. (B)(2), The

Petitioner appealed his case to the Supreme Court of Ohio presenting twelve

propositions of law, the following being the relevant ones for this petition.

Testimony relating the conduct of an accused in remaining

silent when faced with custodial accusation may not be

received in evidence against him, for to do so would cons-

titute a violation of the accused's Fifth Amendment rights.

Further, as a matter of State evidence law, Chapman not

applying, there is a “reasonable possibility” the

inadmissible evidence might have contributed to the con-

viction.

The Defendant's constitutional rights, as set forth in

Griffin v. California and United States v. Nolan, were

violated. The prosecution may not use at trial the fact

that the Defendant stood mute or claimed his privilege,

under Miranda, in the face of accusation. The State may

not use at trial the fact that the Defendant claimed his

constitutional privileges in the face of accusation.

IIl

Photographic identification procedures are not to be em-

ployed when suspect is in custody and a lineup is other-

wise feasible unless the police can offer extenuating

circumstances justifying use of a photographic identifi-

cation.

The Ohio death penalty statutes, specifically sections

2929.03 R.C. and 2929.04 R.C. are arbitrary, capricious,

unreasonable, and violate due process and the Eighth

Amendment.

The Ohio Supreme Court, in response to Proposition of Law I, found

| that the trial court erroneously admitted the testimony in question; however,

| they found such errors harmless. Finding no other errors in the Petitioner's

| case, the Supreme Court of Ohio affirmed his conviction and sentence of death

| on December 29, 1976, in their Opinion at 49 Ohio St. 2d 14 (1976).

Petitioner, on or about January 10, 1977, filed with the Supreme

Court of Ohio a motion for rehearing setting forth six grounds therein. The

Ohio Supreme Court denied the Petitioner's request on January 28, 1977.

The Petitioner timely filed an application for extension to file

| his petition before this Honorable Court. The extension was granted by the

Honorable Justice Stewart allowing Petitioner until June 27, 1977, to file

his petition. Petitioner's sentence of death has been stayed by the Ohio

} Supreme Court pending this Petition for Certiorari. The within action is

| before this Honorable Court on a petition for Writ of Certiorari to the Supreme

Court of Ohio.

REASONS FOR GRANTING THE WRIT

THIS COURT SHOULD GRANT CERTIORARI TO CONSIDER

WHETHER THE OHIO CAPITAL PUNISHMENT STATUTES AND

THE SENTENCE OF DEATH GIVEN TO PETITIONER VIOLATE

THE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO

THE UNITED STATES CONSTITUTION.

Summary of the Ohio Capital Punishment Statutes

The most serious crime in Ohio is aggravated murder, proscribed

by Section 2903.01 of the Ohio Revised Code. Aggravated murder occurs if

there is a purposeful killing that takes place with “prior calculation and

design," or if there is a purposeful killing of another in the course of

committing, or attempting to commit, any one of ten enumerated felonies.

See generally Ohio Revised Code, § 2929.04(A) and (B). The first category

involves what is essentially the common law offense of premeditated murder,

while “a latter category involves what was essentially the felony-murder

doctrine with the additional requirement that the death be purposefully

caused.

Conviction for aggravated murder alone does not necessarily resolve

in the imposition of the death penalty. Eg. Ohio Revised Code § 2929.03(A).

Indeed, in order for the death penalty to be a possible sentence at all, the

accused must be indicted not only for eggrevetet murder but also for one of

seven enumerated specifications. Ohio Revised Code, § 2929.03(B). It should

be noted that the killing of another with prior calculation and design is not

one of the specifications. On the other hand, purposeful death resulting

from the commission of certain of the felonies which would cause the offense

to be aggravated murder will also serve as one of the specifications under

which the death penalty can be imposed. ‘Ohio Revised Code § 2929.04(A)(7).

In order to receive the death penalty, an accused must first be

indicted both for aggravated murder and for one or more specifications. Ohio

Revised Code § 2929.04(A). Next, the jury must return a guilty verdict upon

both the charge of aggravated murder and at least one of the specifications.

Ohio Revised Code § 2929.03(C).

bes

ih)

Upon the return of such a guilty verdict, the jury is discharged

and a mitigation hearing is held. The purpose of the mitigation hearing

is to determine whether or not three possible mitigating factors exist:

(1) The victim of the offense induced or

facilitated it;

(2) It is unlikely that the offense would have

been committed, but for the fact that the

offender was under duress, coercion, or

strong provocation;

(3) The offense was primarily the product of

the offender's psychosis or mental deficiency,

though such condition is insufficient to estab-

lish the defense of insanity.

Ohio Revised Code § 2929.04(B).

At this hearing the burden of proof by a preponderance is placed

upon the defendant. If he cannot prove that one of the three mitigating

factors exist, then the Court has no choice but to impose the death penalty.

On the other hand, if such proof is forthcoming, then the trial court has no

discretion and must sentence the defendant to life imprisonment.

7 It is also noteworthy that in the state of Ohio a defendant has

a right to waive a jury trial and have his capital case tried by a three-

judge panel. Rule 23 of the Ohio Rules of Criminal Procedure. In the event

that his case is heard by a three-judge panel, all three judges preside at

the mitigation hearing and must unanimously agree that the defendant has not

met his burden of proof before the death penalty can be imposed. Conversely,

if trial was had to a jury, the trial judge alone presides as the trier of

fact at the mitigation hearing. In either situation, no findings of fact or

conclusions of law are required other than a general finding that the defen-

dant failed to meet his burden of proof upon the issue of mitigation.

If a defendant is convicted of aggravated murder with one or more

specificstions; has a mitigation hearing in which he fails to meet his burden

of proof; and is sentenced to death as required by Ohio law, he may exercise

the right to take an appeal through, the Ohio courts the same as any other

criminal defendant. The sole special provision for the appeal of capital

cases is that under Article IV, Section 2 of the Ohio Constitution, he is

guaranteed a hearing before the Ohio Supreme Court whereas there is normally

only a discretionary appeal.

The Ohio statutes violate Petitioner's Fourteenth Amend-

ment rights by placing the burden of proof upon him with

respect to the issue of degree of culpability and re-

sulting punishment.

After conviction, a mitigation hearing was held to consider

whether Petitioner could prove the existence of any one of the three mit-

igating factors and thereby save himself from execution. As required by

Ohio tov, the burden of proof by the preponderance was placed upon

Petitioner. T. 6, 14-16, 19.

Petitioner submits that the lack of any mitigating factor is, in

reality, an element of the crime and that the state's requirement that he

prove the existence of a mitigating circumstance by a preponderance of the

evidence violates Petitioner's Fourteenth Amendment due process right to

require the state to prove each and every element of the offense beyond a

reasonable doubt. Mullaney v. Wilbur, 421 U.S. 684 (1975); in re Winship, ©

397 U.S. 358 (1970).

“ This infirmity of Ohio's capital punishment scheme has been

raised on three separate occasions, State v. S. Lockett, C.A. No. 7780

(Summit Cty. C.A., March 3, 1976); State v. S. Lockett, 49 Ohio St. 2d

48 (1976); and State v. Hudson, No. 35562 (Cuy. Cty., C.A. March 17, 1976).

Only in the latter case did the Ohio Courts recognize the existence of

Mullaney v. Wilbur, supra, and make even a superficial attempt to apply the

Fourteenth Amendment--as interpreted by Mullaney to the Ohio statutory

echane-+/

—lonio Revised Code 2929.03(E):

". . . if the Court finds . . . that none of the miti-

gating circumstances ... is established by a preponder-

ance of the evidence .. ."

Accord: State v. Woods, 48 Ohio St. 2d 127, 135 (1976); Committee Comment

to R.C. 2929.03 reprinted in Page's Ohio Revised Code Ann., Title 29 (1975).

2in State v. S. Lockett, C.A. No. 7780 (Summit Cty. C.A.,

March 3, 1976), 15-16 (the relevant‘parts of this Opinion are set forth

at App. 41 to 43 .) the pertinent portions of the Court of Appeals

decision upon this issue were as follows:

"Mitigation of sentence has traditionally been a defense

function, and the right of leniency has always been based

upon the circumstances of the case and of the circumstances

surrounding the defendant himself ...."

In Hudson the State Court of Appeals dismissed the issue in

summary fashion concluding that Mullaney was not applicable to Ohio's

mitigation hearings because, ". . . the punishment aspect of a case, i.e.,

sentencing, is clearly distinguishable from the adjudicatory phase... .

State v. Hudson, supra, 8-9, App. at 34 to 39.

This analysis might be correct if the facts developed at the

mitigation hearing were to be used by the trial judge in exercising dis-

cretion to choose between different sentencing alternatives. But Ohio

Revised Code Section 2929.03(E) clearly denies the trial judge any sentenc-

ing discretion. If one set of facts exists, then the trial court has no

choice but to sentence the defendant to death, while if the other set of

circumstances exists, the court must sentence the defendant to iife imprison-

ment.

It is thus apparent that the absence of any of the circumstances

set forth in the "mitigation" portion of the statute is a condition preced-

ent for execution. As such, it is an element of the offense which the

state must prove beyond a reasonable doubt. |

The correctness of Petitioner's position is evident when it is

noted that there is a virtual identity between the function of the

"We find no conflict with the Constitution or other laws

in this statutory provision governing mitigation of sen-

tence pursuant to a separate hearing after guilt has been

established. In fact, it provides an added benefit to the

convicted felon."

The response of the Ohio Supreme Court was similar:

“Appellant's argument misconstrues [sic] statutory sen-

tencing procedures. Appellant's argument would have the

state prove the proper punishment. Clearly, the intro-

duction of mitigating circumstances has traditionally

been a defense function. What appellant fails to per-

ceive is the fact that her guilt has already been proven

by the time of the mitigation stage of the proceedings.

The mitigating circumstances listed in R.C. 2929.04(B)

relate to the lessening of punishment and are far broad-

er than affirmative defenses which the defense must prove

im order to excuse or otherwise justify the commission of

an offense." ,

"We find no constitutional conflict in imposing the bur-

den of proving mitigation of punishment on a defendant

already adjudged guilty of the commission cf a capital

offense. This proposition of law is without merit."

State v. S. Lockett, 49 Ohio St. 2d 48, 65-69 (1976).

“mitigating” circumstances under Ohio law which would reduce the penalty

from death to life imprisonment and the existence of “provocation” in

Mullaney which would make the difference between a life sentence, on the

one hand, and a sentence ranging from a fine to twenty years imprisonment

‘on the other hand. In Mullaney the state--like the Ohio Court of Appeals--

attempted to justify placing the burden of proof upon the defendant by

arguing that the absence of heat of passion on sudden provocation was not a

“fact necessary to constitute the crime” of felonious homicide. The state

of Maine--like the state of Ohio in the case at bar--argued that the question

of provocation was considered only on the issue of punishment after it was

determined the accused was guilty of at least manslaughter. Mullaney at

697, n. 16.

In rejecting that argument, this Court's reasoning pointed out

the infirmity that Petitioner believes exists in Ohio's statutes:

",. . . if Winship were limited to those facts that con-

stitute a crime as defined by state law, a State could

undermine many of the interests that decision sought to

protect. .. . It would only be necessary to redefine

the elements that comprise different crimes, character-

izing them as factors that bear solely on the extent of

punishment." (Emphasis added.)

Mullaney v. Wilbur, supra at 697.

The truth of this conclusion is demonstrated by a consideration of Ohio

statute making murder (distinguished from aggravated murder) an offense

punishable by imprisonment. When the elements of aggravated murder under

Ohio Revised Code Section 2903.01(A) are compared with murder under Ohio

‘Revised Code Section 2903.02 it can be seen that the only additional ele-

ment to be proven is that the death purposely caused was caused with “prior

calculation and design." By application of the logic in Hudson the state

would be free to change the title of the murder statute to read "aggravated

" require the death penalty for the "new" aggravated murder; but .

murder ;'

provide that one of the mitigating factors which would preclude the imposi-

tion of the death penalty would be proof of the absence of any “prior

calculation and design." Indeed, sf this logic were uniformly applied

commonly accepted elements of almost every crime could be removed from the

consideration of the jury and rephrased in such a manner as to require the

defendant to make such proof in order to mitigate an otherwise harsh sen-

tence.

For this reason Petitioner concludes that the Ohio death penalty

scheme is not consonant with the Fourteenth Amendment and the principles

enunciated by this Court in Winship and Mullaney.

In the alternative, Dentetense believes that siuce these fact

€indings have life or death consequences, the burden of proof must neces-

surily rest on the state. Since this Court ‘held in Mullaney that our system

of justice is “concerned not only with guilt or innocence in the abstract

but alse with the degree of criminal culpability," Mullaney at 697, 698,

Petitioner reads Mullaney to apply to the case at bar even if it were

assumed, arguendo, that the proof related only to punishment and not to

the essential elements of the offense. For:

"[U]nder this burden of proof, a defendant can be given

a life sentence when the evidence indicates that it is

as likely as not that he deserves a significantly lesser

sentence. This is an intolerable result. .. ."

(Emphasis added.)

Mullaney at 703.

Since “death is qualitatively different from a sentence of im-

prisonment . . -" and “differs more from life imprisonment than a 100-

year prison term differs from one of only a year . ..," Woodson v. North

Carolina, 428 U.S. 280, 96 S. Ct. 2978, 2992 (1976), it is an intolerable

situation when a person in the State of Ohio can be executed when the

evidence indicates that it is "as likely as not" that that person deserves

to live.

Whether this burden of proof is viewed as being imposed upon the

‘defendant as an “element of the offense," or as a standard for applying the

proper penalty, it is evident that it is being applied to the prejudice

of Petitioner's constitutional rights. Because of the failure of the Ohio

courts to acknowledge the existence of the constitutional issue and to

follow the mandate of this Court's decision in Mullaney v. Wilbur, supra,

Petitioner submits that certiorari should be granted in order to properly

enforce the supremacy clause of the United States Constitution.

Cc.

The Ohio death penalty statutes violate Peti-

tioner's Sixth, Eighth and Fourteenth Amendment

rights to a trial by a jury of his peers.

Petitioner's claim to a right to jury trial upon the factual

issue of mitigation which determines whether he lives or dies is based

both upon traditional sixth-fourteenth amendment analysis and a separate

and independent claim under the elena and fourteenth amendments.

Petitioner's Sixth Amendment claim is grounded on his right to

require the state to prove each and every element of the offense to a

jury of his peers. As set forth more fully above, the Ohio capital punish-

ment system requires that an individual be indicted for and convicted ef

aggravated murder with specifications and that he be unable to prove that

he comes within one or more of the three mitigation categories before he

can be sentenced to death. Under Ohio Revised Code section 2929.03(C)

the factual determination upon the existence of mitigation is taken out

of the hands of the jury and ruled upon by the trial judge or a three-

judge panel. Since the absence of mitigating circumstances is one of

the essential elements of the crime of aggravated murder in which the

accused is sentenced to death, he is entitled to a trial by jury upon

that issue.

Further, even if it is assumed, arguendo, that the factual

determination relates to only an aspect of punishment and not an element

of the offense, the resolution of the factual question is of such over-

riding importance that Petitioner is entitled to have that determination

made by a jury. Indeed, this Court recognized in Mullaney v. Wilbur,

supra, af. 698, that the determination of facts pertaining to culpability

“may be of greater importance than the difference between guilt and

innocence for many lesser crimes... . ." Obviously, the resolution of

facts which will determine whether the petitioner lives or dies creates

/wullaney v. Wilbur, 321 U.S. 684, 697, 698 (1975): "the

criminal law . . . is concerned not only with guilt or innocence in the

abstract but also with the degree of criminal culpability."

such a situation. See Woodson v. North Carolina, supra at 305. Under

this circumstance the right to a jury determination of these crucial

facts cannot be constitutionally denied to Petitioner. See United States v.

Kramer, 289 F. 2d 909 (2d Cir. 1961).

Petitioner also advances a separate and independent claim under

the Eighth and Fourteenth Amendments to the Constitution to have the

determination of life or death made by a jury. In support of this claim,

Petitioner submits the following:

First. The evolving standards of decency that are reflected

by the Eighth Amendment can only find proper expression in the context

of capital punishment by the existence of jury decision-making upon the

issue of life or death. As this Court recognized in eeebenneen v.

Illinois, 391 U.S. 510, 519 n. 15 (1967):

" . . . one of the most important functions any jury

can perform in making such a selection [between life

imprisonment and capital punishment] is to maintain

a link between contemporary community values and the

penal system—-a link without which the determination

of punishment could hardly reflect the evolving

standards of decency that mark the progress of a

maturing society." (Citation omitted). (Emphasis

added.)

This conclusion was quoted with approval in Gregg v. Georgia, 428 U.S.

153, 181 (1976). Indeed, in Woodson v. North Carolina, 428 U.S. 280,

293 (1976), jury decisions with respect to capital punishment were

recognized as one of “the two crucial indicators of evolving standards

of decency respecting the imposition of punishment in our society."

Further, in Gregg v. Georgia, supra, the jury was found to be a

significant and reliable objective index of contemporary value because it

is so directly involved. To allow states to exclude the jury from de-

cision making on the issue of death would be tantamount to abandoning the

“evolving standards of decency" test of the Eighth Amendment. A decision

that jury participation is not required by the Eighth Amendment would

thereby allow the state to effectively undermine the force of that amend-

ment by removing one of the two "crucial indicators" of “evolving standards

of decency."

Second, The guarantee of a right to a trial by jury is more

than an inestimable righct--it also “reflects a profound judgment about

the way in which law should be enforced and justice administered."

Duncan v. Louisiana, 391 U.S. 145, 155 (1968).

Though the authors of the Constitution sought to create a

democratic government, they nevertheless provided for the right to trial

by jury with the clear intent of protecting "the accused from government

oppression." Singer v. United States, 380 U.S. 24, 31 (1965). -It was

fully contemplated that such oppression might come from the judicial

branch as well as from other branches of the government.

As this Court so clearly enunciated in Duncan v. Louisiana, supra

at 156:

“Those who wrote our constitutions knew from

history and experience that it was necessary

to protect against . .. judges too responsive

to the voice of higher authority."

zak

" . . . Providing an accused with the right to

be tried by a jury of his peers gave him an in-

estimable safeguard . . . against the compliant,

biased, or eccentric judge.

More recently, in Taylor v. Louisiana, 419 U.S. 522, 530 (1975),

one of the purposes of the jury system was recognized as being:

+ « « to guard against the exercise of arbitrary

power--to make available the commonsense judgment

of the community .. . in preference to professional

or perhaps overconditioned or biased response of a

judge. .. . (Citation omitted.)

Because. of this fear of judicial power; because of "the belief

that “aposition of the death penalty ought to reflect more of a community

consensus than can be marshalled by one an” and because "(t]he magni-

tude of a decision to take a human life is probably unparalleled in the

human experience of a member of a civilized society," Marion v. Beto, 434

F. 2d 29, 32 (Sth Cir. 1970), decisions upon sentencing an accused to

death have historically been reserved to the legislature, through manda-

tory sentencing or to the jury. Where discretion is to be exercised, jury

responsibility for the imposition of the death penalty has been recognized

as “ a principle of justice so rooted in the traditions and conscience

of our people as to be randed as fundamental." Snyder v. Massachusetts,

~~ A.B.A. Standards, Sentencing Alternatives and Procedures,

commentary to § 1.1(c) [Approved Draft (1968)].

291 U.S. 97, 105 (1934).

Because of this deeply rooted commitment to the right of jury

trial and the feeling that the decision of life and death was too im-

portant to be entrusted in a judge, judges were almost uniformly excluded

from the decision-making process by which it was determined who would

live and who would die until the confusion regulting from this Court's

decision in Furman v. Georgia, 408 U.S. 238 (1972).

Ohio well illustrates the truth of this point. In 1788, the

governing body of the Northwest Territory--of which Ohio was a part--enacted

statutes providing for capital punishment upon conviction for treason,

murder, and arson where death occurs. Upon conviction the death sentence

was mandatory: neither judge nor jury had any discretion in the matter.

Ch. VI, Laws Passed in the Terr. of the U.S. North-West of the River Ohio.

Though the offenses for which the death penalty was applicable

were changed from time to time, the sentence of death continued to be a

mandatory one until April 23, 1898. On that date, the jury was vested

with the power to preclude the imposition of the death penalty upon one

convicted of murder in the first degree. S.B. No. 504 [To amend section

6808 of the Revised Statutes of Ohio.] 92 Ohio Laws 223.—/ Provisions

substantially the same continued until January 1, 1974 when current

death penalty statutes took effect giving judges the power of deciding

facts which determined life or death for the first time in 186 yeeso.-!

nis was part of a trend under which most states abandoned

the mandatory death penalty and committed the question of a death sen-

' tence to a jury. Because of the repugnance of democratic people to

giving an agent of the state, albeit a judge, the power to order death

it is not surprising that when state legislatures turned from mandatory

to discretionary sentencing procedures in capital cases, it was the jury,

and not the trial judge, in whom the discretion was vested. See

McGautha v. California, 402 U.S. 183, 200 (1971).

—/onto's history upon this point would seem to be consistent

with that of the rest of the nation. For example, survey of the apvlicable

statutes in 1948 indicated that four states retained a mandatory death

penalty; five states had abolished the death penalty, and in 39 states

the choice between death and life imprisonment was left to the jury.

Andres v. United States,-333 U.S. 740, 767 (1948). At that time no state

allowed a judge to participate in ‘naking the actual decision as to who

was to live and who was to die.

Ohio's departure from this standard seems to have been occasioned

by confusion over the meaning of this Court's decision in Furman v.

Geargia, 408 U.S. 238 (1972). When the legislature was making a pre-

Furman comprehensive revision of the state criminal code, the first version

of the bill which was eventually enacted, provided for a jury determination

of whether an individual convicted of aggravated mrder would live or

die,2/ This provision was retained in the substitute bill which was later

introduced. Though various amendments were proposed to the substitute

bill, no one attempted to vest the trial judge with any responsibility for

the decision upon capital punishment.’ The Court's decision in Furman

was rendered after the substitute bill had been passed by the State House

of Representatives and was pending before the State Senate Judiciary

Committee.’ The Judiciary Committee, in its efforts to conform the new

provision to what it viewed as the Furman requirement, eliminated the

. 10

jury from the decision-making process on capital ounichncat.—

This mistake--though understandable--does not change the under-

lying difficulty with the statute. Both reason and history suggest that

jury decision-making upon the imposition of capital punishment is a value

ingrained in both the eighth and fourteenth amendments.

Because the right to a jury trial is so fundamental; because

the consequences of the death penalty are so profound; and because Ohio's

departure from the time-honored practice of precluding judges from parti-

cipating in the decision upon whether to impose capital punishment was

initiated by confusion engendered by this Court's decision in Furman v.

Georgia, supra, review by this Court is merited.

‘

Peon and Norris, Some Legislative History and Comments on

Ohio's New Criminal Code, 23 Cleve. St. L. Rev. 8, 16 (1974).

“Id. at 17-18

ra. at 18.

10/54. at 20.

~ ro ~

sec FES § Fok

tert ree :

The State has established no compelling state interest

which would justify depriving petitioner of his fundamen-

tal right to life.

The Massachusetts death penalty was found to be violative of that

State's constitution in Commonwealth v. O'Neal, 339 N.E. 2d 676 (Mass. 1975).

In his concurring opinion Chief Judge Tauro utilized state due process of

law analysis which is equally susceptible to application under the due pro-

cess clause of the Fourteenth Amendment.

Such analysis highlights one of the major deficiencies of Ohio's

attempt to resume the practice of execution and may be summarized as follows:

| The Fourteenth Amendment guarantees that states cannot deprive a

person of his life without due process of law. Life is the most fundamental

right of all: without it an individual would have no rights, fundamental or

otherwise. In order to be sustained a statute depriving an individual of a

fundamental right must be the least onerous means of furthering a compelling

state interest. Thus, a death penalty statute which seeks to deprive a per-

son of his life triggers a strict scrutiny under the compelling state interest].

and least restrictive means test.

The death penalty serves two principal purposes: deterence of

capital crimes by prospective offenders and retribution. Gregg v. Georgia,

428 U.S. 153, 183-185, (1976) (pluarality). While Petitioner does not dispute

that society has a compelling state interest in deterence sufficient to im-

prison those convicted of murder, the results of empiracle studies have been

inconclusive as to the deterent effect of the death penalty vis a vis impri-

sonment. Gregg v. Georgia, supra. There "is no convincing empiracle

evidence either supporting or refuting" the view that the death penalty may

not function as a significantly greater deterent force than lesser enalties.

Gregg v. Georgia, supra at 185.

Consequently, under both the compelling state interest test and

the least restrictive means test deterence cannot be utilized to justify the

death penalty in lieu of imprisonment. Further, though retribution is not a

forbidden objective, it neither requires death in order to be satisfied

nor rises to the level of a compelling state interest. Thus, since the

State of Ohio is unable to demonstrate anv compelling state interest justify-

ing the execution, as opposed to the incarceration of the petitioner, the

Ohio statutory scheme is unconstitutional and Petitioner's sentence of execu-

tion is void.

This Court should grant certiorari to consider

whether the mitigation factors listed in Ohio

Capital Punishment Statute are unconstitu-

tionally limited.

Last term, this Court struck down the Death Penalty Statutes in

North Carolina and Louisiana, since those states had misread this Court's

opinion in Furman v. Georgia, 408 U.S. .238 (1972) by attempting to meet

the requirements of the Eighth and Fourteenth Amendments by removing all

sentencing discretion from the judge and jury. Woodson v. North Carolina,

428 U.S. 280, 300 (1976); Roberts v. Louisiana, 428 U.S. 325 (1976). The

Ohio Legislature, in enacting the state's death penalty statute, also misread

this Court's opinion in Furman, supra, since it is clear that the legislative

intent was to retain the death penalty, ", . . but to remove from the judge

and jury as much discretion as possible in the punishment determination

ite

The death penalty statute enacted by the legislature provides

only three mitigating factors by which a defendant who has become an auto-

matic candidate for the death ww can exculpate himself. The Ohio

statute appears to be unique in relation to capital punishment statutes

already reviewed by this Court last term. In Ohio the defendant has the

burden of establishing by the preponderance of evidence, one of the mitigating

13/ 14/ 15;

factors. In comparison to the statutes in Florida, Georgia,— and

11/

—~ Lehman and Norris, Some Legislative History and Comments on

Ohio's New Criminal Code. 23 Cleve. St. L. Rev. 8, 20 (1974).

12/ onio Revised Code 2929.03(D) provides that if the Defendant

fails to establish one of the mitigating circumstances by a preponderance

of the evidence the Court "shall impose the Penalty of Death on the offender."

1F onto Revised Code 2929.04(B}. The trial judge, in imposing the .

death penalty in Petitioner's case found that Petitioner had not met his

burden of proof. This principle of ,the defendant's burden of proof at the

mitigation hear.ng was affirmed in the Ohio Supreme Court opinion in State

v. Sandra Lockett, 49 Ohio St. 2d 48, 66-67 (1976).

14/ one Florida statute reviewed by this Court provided seven specific

mitigating circumstances, four of which are noticeably not present in, the Ohio

statute, such as the defendant's age, prior record, his role in the offense,

and more broadly defined mental and emotional disturbances and impairments.

Proffit v. Florida, 428 U.S. 242, 248 Fn. 6 (1976); see State v. Bayless,

48 Ohio St. 74 75 at 86-87 (1976) (for comparison of Florida statute with Ohio.

ee Be eG

tTexest!! which have passed constitutional scrutiny by this Court, Ohio's

mitigation factors are extremely narrow. Thus, the Ohio law does not

establish "objective standards to guide, regularize, and make rationally

‘reviewable the process for imposing a sentence of death" (Woodson v. North

Carolina, supra, at 428 U.S. 303), but for all practical purposes is a

17/

mandatory death penalty.

Even if accepted at face value,

Ohio's mitigation provisions are

unconstitutionally narrow.

This Court held that the Eighth Amendment ". . . requires con-

sideration of the character and the record of a particular offense... ."

More recently, this court interpreted Woodson and H. Roberts v. Louisiana,

U.S. » 21 Cr. L. 3076, 3077 (1977) plurality) to hold that:

". . . it is essential that the capital sentencing

decision allow for consideration of whatever miti-

' gating circumstances may be relevant to either the

particular offender or the particular offense."

(Footnote omitted) (Emphasis added.)

See also Jurek v. Texas, 428 U.S. 262, 271-272 (1976).

In H. Roberts v. Louisiana, supra, this Court indicated that:

"[c]ircumstances such as the youth of the offender,

the absence of any prior conviction, the influence

of drugs, alcohol, or extreme emotional disturbance,

and even the existence of circumstances which the

offender reasonably believed provided a moral jus-

tification for his conduct are all examples of

mitigating facts. ..."

#2 As this Court noted in Gregg v. Georgia, 428 U.S. 158 (1976), the

Georgia capital punishment statute allows any mitigating factor provided by

law to be presented by the defendant at the sentencing trial, including

youth, extent of cooperation with the police, and emotional state at the

time of the time of the crime. Gregg, supra, at 428 U.S. 197.

22) ssenough the Texas statute did not delineate a mitigating circum-

stance, this Court recognized by cage law that the defendant could present any

mitigating factor at his sentencing trial, including age, mental and emo-

tional state, and lack of price criminal secoré. Jurek v. Texas, 428 U.S.

262, 273 (1976).

12/ the Ohio Supreme Court has reviewed 20 post-Furman death

sentences and reduced none.

But under Ohio law the "mitigating facts" are limited to the

three set forth in 2929.04(B). By this severe restriction upon mitigating

facts, Ohio has contravened the Eighth and Fourteenth Amendments.

“Two of the three mitigating factors provided in the

Capital Punishment Statute fail to particularize

consideration of the relevant aspects of the

character and record of each convicted defendant

before the imposition upon him of a sentence of

death. :

At the mitigation stage of the trial, the death penalty is man-

dated unless the defendant convicted of aggravated murder with specifica-

tions proves one of the following factors by a preponderance of the

evidence:

(1) The victim of the offense induced or

facilitated it.

(2) It is unlikely that the offense would have

been committed but for the fact that the

offender was under duress, coercion, or

strong provocation.

(3) The offense was primarily the product of

the offender's psychosis or mental

deficiency, though such condition is

insufficient to establish the defense

of insanity.

Ohio Rev. Code 2929.04(B).

On its face, the statute only meets the constitutional require-

ment of “particularized considerations of relevant aspects of the character

and record of each defendant before the imposition upon him of a sentence

of death" in criteria three. Woodson v. North Carolina, supra, at 303.

As to witigating factor (1), the conduct of the victim in facilitating his

own death, clearly the character and record of the defendant has no

relevance.

While the defendant's background is relevant to considering the

18/

concepts in mitigating circumstance (2) of duress, coerciom and

strong comment” its application to the class of death penalty

candidates has so far been extremely limited and almost non-existent.

The sole mitigating factor which addresses

the character and record of the accused is

illusory and fails to provide an adequate

standard by which a defendant can exculpate

himself from the death penalty.

18/ ne issue of duress and coercion has arisen in two cases, State

v. Woods, 48 Ohio St. 2d 127 (1976), and State v. Bell, 48 Ohio St. 2d 270

(1976). In Woods, supra, the court gave an admittedly broad definition of

duress and coercion in application, however, the court appeared to overlook

its own definition. In Woods, the defendant had no prior record, was easily

led, and was dominated by others, especially his co-defendant, Reaves, who

had planned the actual robbery. Since Woods did mot abandon his criminal

conduct before the shooting (in which case he would have escaped capital

punishment altogether) the court did not reduce his sentence. By the same

token, in Bell, supra, the court refused to reduce the defendant's sentence

although he was only 16, and also easily led by his adult companion, Hall,

since he had not abandoned his criminal conduct after the crime was committed.

Bell, supra, 48 Ohio St. 2d 282. Both these cases are examples of Ohio

Supreme Court's refusal to judge “individual culpability" of each defendant

instead of reviewing on the basis of the “category of the crime committed."

See Roberts v. Louisiana, supra, 428 U.S. at 222.

19] one mitigating factor that "it is umlikely that the offense

would have been committed but for the fact that the offender was under

+ « « Strong provocation," Ohio Rev. Code 2929.04(B)(2) has not been an

issue in any of the twenty (20) capital cases rewiewed by the Ohio Supreme

Court. The above section is for all intents and purposes identical to the

Ohio Criminal Code definition of voluntary manslaughter:

"No person while under extreme emotional stress

brought on by serious provocation reasonably

sufficient to incite him into using deadly

force, shall knowingly cause the death of another."

(Emphasis added.)

Ohio Rev. Code § 2903.03..

Thus a defendant in Ohio who kills his victim under serious or strong pro-

vocation sufficient to raise a reasonable doubt to the jury would be guilty

of voluntary manslaughter and would not be subject to the death penalty.

Alternatively, if the defendant was ‘unable to comwice the trier of fact at

trial that he acted under strong provocation sufficient to raise even a

reasonable doubt, it is doubtful if he could conwince the trial judge by

a preponderance of the evidence at his mitigatiom hearing. Therefore the

availability of this mitigating factor is at best speculative.

The sole mitigating factor which allows the consideration of

defendant's background and character is subsection (3) of 2929.04, which

allows the defendant to prove that the crime was “primarily the product

of "his" psychosis or mental deficiency." Since a "psychotic" offender,

in all probability would not be found criminally responsible for his

actions, in practice, the consideration of the accused's life and character

will turn on the interpretation of "mental deficiency."

The phrase “mental deficiency" in psychiatric terms has been used

synonomously with mental retardation. The first death penalty case decided

by the Ohio Supreme Court, State v. Bayless, 48 Ohio St. 2d 73 (1976) adopted

this saverguotetion.2”

After the Bayless, supra, case, possibly in concern over the

scrutiny this Honorable Court would place on the narrowness of the statutory

mitigating factors, the Supreme Court enlarged its definition of “mental

deficiency." The new interpretation of "mental deficiency" became:

“Any mental state or incapacity may be considered

in light of all the circumstances and including

the nature of the crime itself. ..."

State v. Black, 48 Ohio St. 2d 262, 269 (1976) .24/

This reinterpretation, Petitioner submits, is cosmetic only since in light

of both the definition in Bayless, supra, and Black, supra, the death

2? scotice Stern, speaking for the Court, held:

"Mental deficiency is consistently defined

to mean low or defective state of intelli-

gence."

State v. Bayless, supra at 95-96.

21/

—"'Interestingly, three justices of the Supreme Court (J. Stern,

Celebreeze, and W. Brown) while concurring in the judgment in Black,

supra, did not concur in the interpretation of “mentally deficient,"

evidencing a division of the court as to the meaning of mental deficient,

if any.

sentences of twenty condemned defendants has found none which fit the

23/

category of mentally deficient, no matter how youthful =~ uneducated ,—

_ or mentally sommnea.™ Thus this mitigating factor is reserved solely

for moron or imbecile, who can demonstrate that the crime was the primary

product of that condition. ;

Furthermore, the accused in Ohio convicted of aggravated murder

with specification have the burden of proof in establishing mitigating

factors such as "mental deficiency" but as of yet such factors have not

been adequately explained by the highest court in the state. Surely a

defendant facing a death sentence is entitled to the same constitutional

due process rights of adequate notice and definitive standards in statu-

tory wording as an accused faced with any type of criminal charges, to

22/

~ The Supreme Court has held that youth is a primary factor

going to mental deficiency. State v. Bell, 48 Ohio St. 2d 270 (1977).

Invariably the Court has upheld death sentences to minors. State v.

Bell, supra (defendant was 17); State v. Harris, 48 Ohio St. 2d 351

(1976) (defendant was 17, with an IQ of 72).

23/ tne Court has held that ", , , [E]ducational deficiency

does not equate with mental deficiency. State v. Edwards, 49 Ohio St.

2d 31, 47 (1976) (defendant was borderline mentally retarded with an

IQ of 72).

24/

~~ State v. Royster, 48 Ohio St. 2d 381 (1970) (defendant

had "an IQ of 75 in 1962; 61 in 1966, and 54 in 1968." Id. at 389).

See also State v. Edwards, supra (defendant had an IQ of 76); State

‘vy. Harris, supra (defendant had an IQ of 72).

safeguard against “arbitrary and discriminatory application" of criminal

statutes. Graynod v. City of Rockford, 408 U.S. 104 at 108-109 (1972); Coates

v. City of Cincinnati, 402 U.S. 611 (1971). Based on the conscious failure

of the Ohio Supreme Court to provide a standard for mitigating circumstances,

the Ohio death penalty statute is inherently vague and the ability of the

accused to avoid the death penalty is illusory.

The Ohio Courts have failed to properly review

Ohio's death penalty cases.

"It is now clear that the sentencing process as well

as the trial itself, must satisfy the requirements

of the Due Process Clause."

Gardner v. Florida, _—U.S. _, 20 Cr. L.

3083, 3085 (March 22, 1977).

Plenary appellate review of death sentences serves as an “importatn addi-

tional safeguard against arbitrariness and caprice." Gregg v. Georgia,

supra, at 2937. The cases of Gregg, Proffitt, Jurek, Woodson, and Roberts

have been held to require "meaningful appellate review designed to determine

whether the imposition of the death penalty is warranted in any given

cases." Jackson v. Mississippi, 337 So. 2d 1242, 1255 (Miss. 1976).

In Ohio a person sentenced to death has an appeal as of right to

the Ohio Supreme Court. Section 2, Article IV, Ohio Constitution. But,

as demonstrated below, the system of appellate review in the state of Ohio

cannot pass constitutional muster.

First. There must be an adequate trial record in order to allow

for effective review. To this end, findings of fact and conclusions of law

are essential. Ohio has noted the importance of findings of fact and con-

clusion of law in civil cases, Ohio Civil Rule 52, but has failed to require

such information in the much more important fact-finding process under which

it is decided whether one convicted of aggravated murder shall live or die.

And in the context of a criminal proceeding, it has been held that trial

courts should make specific findings of fact to support rulings upon sup-

pression motions, United States v. Gusan, 549 F. 2d 15 (7th Cir. 1977); that

such findings are always advisable with respect to the reasons for rendering

a particular sentence, United States v. Carden, 428 F. 2d 1116, 1118 (8th

Cir. 1970); and that in state speedy trial proceedings “sufficient facts and

reasons be set forth in the record to support the court's decision." State

v. Messenter, 49 Ohio App. 2d 341, 346 (1976). Indeed, as was said in

Gardner v. Florida, U.S. __, 20 Cr. L. 3083, 3086 (March 22, 1977):

",. . . Since the State must administer its capital

sentencing procedures with an even hand, see Proffitt

v. Florida, U.S. __, No. 75-506 (July 2, 1976)

Slip op., at 7-9, it is important that the record on

appeal disclose to the reviewing court the considera-

tions which motivated the death sentence in every case

in which it is imposed. Without full disclosure of

the basis for the death sentence, the Florida capital

sentencing procedure would be subject to the defects

which resulted in the holding of unconstitutionality

in Furman v. Georgia." (Footnote omitted.)

But the Ohio trial courts continuously fail to make detailed find-

ings necessary for effective appellate review. See generally, Petition

for Certiorari in Floyd Edwards v. State of Ohio, U. S. Supreme Court No.

76-6837, pp. 39-40. Their failure in this regard makes effective appellate

review difficult, if not impossible, and indicates one major failing of

Ohio's capital punishment scheme.

Second. The Ohio Supreme Court itself has shown an indifferent

regard for integrity of the record upon which review predicated. In State

v. Woods, 48 Ohio St. 2d 127, 134 n. 3 (1976) the Court noted:

"One difficulty in considering the claims for mitiga-

tion in this case is that the pre-sentence report re-

quired to be made by statute does not appear in the

record." (Emphasis added.)

In spite of this deficiency; in spite of the Court's admonition to the lower

courts that such reports "should" be included in the record; and in spite of

its power to supplement the record by ordering the report to be deposited

with the Court, e.g., State v. Roberts, 50 Ohio App. 2d 237, 251 (1976), the

Ohio Supreme Court proceeded to analyze the merits and affirm the conviction

without the availability of the reports.

Third, At least with respect to the case of State v. Edwards, 49

Ohio St. 2d 31 (1976), the Ohio Court below has demonstrated that it did not

examine the record with the type of serious scrutiny that should be given

to a case which may result in the death penalty.

As set forth more fully, beginning at page 47 of Edwards’ petition

for certiorari, supra, the Ohio Supreme Court erroneously concluded that a

psychiatric evaluation ordered by the trial court was for purposes of deter-

mining competency when a close examination of the record would have clearly

revealed that the psychiatrist was asked to, and did in fact, examine Mr.

Edwardswith respect to one of the mitigating factors which, if established,

would preclude imposition of the death penalty.

The Court made a similar mistake with regard to the identity of

one Mack Newberry. In attempting to justify the decision of the trial court

in allowing officer Ronald Davis to testify for the state, even though his

name ¢id not appear on the witness list, the Ohio Supreme Court stated:

"Although the witness list was incomplete, it did in-

clude the name of Mack Newberry, the partner of Ronald

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

was the intention of the state to call Newberry as its

first witness, but a heart attack the night before trial

precluded his appearance, and Davis was called in his

stead."

State v. Edwards, 49 Ohio St. 2d 31, 42 (1976).

The transcript clearly shows that Newberry was an individual who

lived in the neighborhood where the victim died. Contrary to the conclusions

of the court below, Mr. Newberry was a black male, 77 years of age, who was

neither a policeman or the partner of officer Ronald Davis. See generally,

Edwards’ petition at 40-41.

Fourth. Of equal concern is the likelihood that the court below

did not devote any serious attention to the briefs prepared by counsel. The

mistake with respect to Mr. Newberry was also one which the Court of Appeals

had initially made. Upon appeal to the Ohio Supreme Court, counsel for Mr.

Edwards pointed this error out in his brief and cited transcript pages

which were relevant to that, explaining to the Court that Mr. Newberry wis

not a police officer. (App. pp. 47-48 ) Im spite of this effort, the error

was republished in the Ohio Supreme Court's opinion.

Fifth. In State v. Bayless, 48 Ohio St. 2d 73, 86 (1976) the Ohio

Supreme Court indicated that it had:

+ « « @ particular opportunity and responsibility

to assure that death sentences, which may be brought

to this court for review as a matter of right, are

not imposed arbitrarily amd capriciously. We have

in this case, and will in all capital cases, inde-

pendently review the aggravating and mitigating cir-

cumstances presented by the facts of each case to

assure ourselves that capital sentences are fairly

imposed by Ohio's trial judges." (Emphasis added.)

See also State v. Woods, 48 Ohio St. 2d 127, 134 n. 3 (1976) and State v.

Strodes, 48 Ohio St. 2d 113, 117 (1976).

In spite of this commitment to “independent review" it is worthy

of note that as of this date the Court has not reversed a single case nor

reduced a single sentence as a result of its independent review.

Further, it is evident that by "independent" review the Ohio Court

does not mean a plenary weighing of the sentencing factors as is done in

Florida, e.g., Swan v. State, 322 So. 2d 485, 489 (Fla. 1975). Indeed,

the Court has stated: :

"In criminal appeals, this court will not retry issues

of fact. In the circumstances at hand, we confine our

consideration 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 sufficient evidence to support its judg-

ment. (Emphasis added.) (Citation omitted.)

State v. Edwards, supra at 47.

Since this is the same standard that is applied to all criminal cases,

the Court's "independent review" seems to be illusory.

Other deficiencies in the review Ohio accords to those sentenced

to death are set forth in each of the substantive arguments advanced by

this Petition. Further examples can be expected to be presented on an

individual basis as the remaining petitions for certiorari are filed. But

Petitioner believes that the foregoing is sufficient to indicate that the

Ohio Courts have not taken their duty to review capital cases as seriously

as they are required to and to merit more extensive briefing for this

‘Court.

Because the Ohio Courts have not adhered to the high standards of

appellate review as Florida, Georgia, and Texas have, the judgment of this

Honorable Court is necessary to set forth the constitutional boundaries

within which state appellate courts must function when reviewing capital

cases.

Ohio capital sentencing procedures impermissibly

penalize exercise of the right to trial by jury.

Petitioner submits that the Ohio statutory scheme improperly and

unnecessarily penalized the exercise of this right to trial by jury and

concurs fully in the apt argument of the law upon this issue submitted by

the petitioner in Carl L. Bayless v. State of Ohio, Petition for Writ of

Certiorari, U. S. Supreme Court No. 76- » P- 23:

"United States v. Jackson, 390 U.S. 570 (1968) stands for the

proposition that the right to a jury trial is unconstitutionally diminished

when separate and more lenient sentencing standards are established for

cases in which the right is waived. See also, Funicello v. New Jersey,

403 U.S. 948 (1911) (per curiam); Atkinson v. North Carolina, 403 U.S. 948

(1971) (per curiam). This is so because such a scheme ‘needlessly encour-

ages’ the waiver of the right to have one's guilt determined by a jury. Id.

at 558. Yet, under Ohio capital sentencing procedures the defendant who

elects to be tried by a jury must forego the benefit of having his fate de-

termined by a panel of judges rather than by a single judge. This benefit

is, of course, considerable:

‘A multi-judge court offers an opportunity for disagree-

ment wholly lacking in a single judge. With such an

issue as the death penalty involved, the possibility and

availability of disagreement are advantages that cannot

be disregarded. The fact that a single judge may be re-

luctant to assume the awesome solitary choice between

life and death cannot weigh in the balance. Judges are

presumed to have the fortitude to carry out their respon-

sibilities.’

Rainsburger v. Foglaine, 380 F. 2d 783 (C.A. 9, 1967). And, since there

is no justification for conferring the benefit upon some, but not all capi-

tal defendants, it can not legitimately serve as an inducement to forego

trial by a jury of one's peers."

The Ohio statutory scheme for capital punishment con-

tains a substantial risk that capital punishment will

be inflicted in an arbitrary and capricious manner.

Initially, Petitioner contends that the Ohio statutory scheme

itself is arbitrary and capricious.

First. This is so because the legislature has provided that a

murder which results from prior calculation anddesign is aggravated murder

without any specification and consequently without any risk of receiving

the death penalty. Compare Ohio Revised Code sections 2903.01 (A) and

2929.04. At the same time, the Ohio Legislature mandated that those whose

actions take the life of another during the commission of a felony (similar

to the common law murder-felony rule) have committed aggravated murder with

a specification and consequently may be subjected to the death penalty unless

mitigating circumstances are proven by a preponderance. Ohio Revised Code

sections 2903.01 (B) and 2929.04 (A)(7). The Ohio statutes thereby operate to

preclude from capital punishment the perpetrator of the most premeditated

and heinous murder, and at the same time to create a presumption of capital

punishment for even the most accidental and unintended death which occurs

during the commission of a felony.

Second. The Ohio statutes dealing with the death penalty for

felony-murder admit to no particularized consideration of the culpability

of the individual when more than one party is involved. It blindly man-

dates the death penalty for principals and aider and abettor alike, without

any regard to their actual knowledge, participation or culpability in the

death. E.g., State v. S. Lockett, 49 Ohio St. 2d 48, 67-71 (1976) (O'Neill,

C.J., Stern, and W. Brown, J.J., dissenting).

Further, the statutory systen is suspect of being applied in an

arbitrary and capricious manner.

First. In Ohio, as in most states, the prosecutor has tremendous

discretion in determining both the ultimate charge against the accused and

in plea bargaining. Petitioner maintains, however, that this inherent

discretion residing in the prosecutor has been greatly and unduly expanded

in light of the Lockett, supra decision.“~

Were it not for the disparity in sentencing that attends each

statute, Petitioner would find little fault with the statutory scheme. How-

ever, in view of the fact that the death penalty may follow a conviction

under 0.R.C. 2903.01(B) and the maximum penalty for a conviction under 0.R.C.

2903.04(A), involuntary manslaughter, is imprisonment for 25 years. Peti-

tioner submits this constitutes arbitrary and capricious discretion in the

prosecutor.

In addition, inasmuch as both statutes have as an element a

homicide committed while in the act of committing or attempting to commit

a felony, and the element of intent is essentially the same, Petitioner

asserts that Ohio has failed to establish any distinction or criteria to.

aid the prosecutor in deciding under which statute to prosecute an accused.

As such, the statutes provide for unbridled discretion in the prosecutor,

resulting in unequal treatment for defendants in similar ten

Ohio is alone among the states of the Union, in vesting its

27/

prosecutors with such discretion.”

In the case of State v. S.- Lockett, 49 Ohio State 2d 48 (1976),

the Ohio Supreme Court held that "a homicide occurring during the commission

of the felony is a natural and probable consequence of the common plan which

must be presumed to have been intended and such evidence is sufficient to

allow a jury to find a purposeful intent to kill" at 48-49. In essence,

this decision has removed the distinction between "purposeful" in O.R.C.

2903.01(B) pertaining to aggravated murder and “proximate results" in 0.R.C.

2903.04(B) pertaining to manslaughter.

this Court has found on numerous occasions that the state may

mot prescribe different degrees of punishment for the same acts committed

under similar circumstances. Williams v. Illinois, 399 U.S. 235 (1970);

Griffin v, Illinois, 351 . S. 12 (1956); Yick Wo v. Hopkins, 118 U.S. 356

(1886). See also State . Zornes, 78 Wash. 2d 9, 475 P. 2d 109 (1970).

27,

—yy far the majority of the states create a clear distinction

between the traditional felony-murder rule and the crime of involuntary

or voluntary manslaughter. ALA. CODE title 14, Sec. 314, Sec. 320; ALASKA

STAT. 11.15.010, 11.15.040; ARIZ. REV. STAT. 13-452, 13-455, ARK. STAT. ANN.

41-2205, 2209; CAL. PENAL CODE sec. 189, 192(2) (West); COLO. REV. STAT.

18-3-102, 18-3-104; CONN. GEN. STAT. ANN. sec. 53(a) (West); DEL. CODE 11

sec. 636; FLA. STAT. ANN. sec. 782.04, 782.07 (West); GA. CODE ANN. sec.

26-1101, 1103; IDAHO CODE 18-4003, 4006; ILL. REV. STAT. ch. 38, sec. 9-1,

sec. 9-3; IND. CODE ANN. 35-42-1-1, 35-42-1-4; IOWA CODE ANN. 35.690.2,

690.10; KAN. STAT. Art. 34, sec. 21-3401; KY. REV. STAT. ANN. sec. 507.020,

507.040; ME. REV. STAT. title 17a, sec.. 203; MD. CODE ANN. art. 27, sec. 388,

410; MASS. ANN. LAWS ch. 265, section 1; MICH. STAT. ANN. sec. 750.316,

750.321; MINN. STAT. ANN. sec. 609.185, 609.20; MISS. CODE ANN. 97-3-19,

Second. In Ohio, as in most states, the prosecutor has tremen-

dous discretion in determining both the ultimate charge against the accused

and in plea bargaining. ebvicusig, such discretion encompasses the oppor-

“tunity for both good faith mistakes and for abuse. The possible constitu-

tional problem with such a system were briefed before this Court in the last

two terms. See Fowler v. North Carolina, No. 73-7031, Brief for Petitioner,

pp. 45-61; Woodson v. North Carolina, No. 75-5491, Brief for Petitioners,

pp. 28-32; Gregg v. Georgia, No. 74-6257, Brief for Petitioner, pp. 18-20;

Jurek v. Texas, No. 75-5394, Brief for Petitioner, pp. 29-40.

Though the existence of such discretion alone is not enough to

demonstrate a constitutional infirmity, e.g., Gregg v. Georgia, supra, at

2937, Petitioner submits that if empirical data were available which demon-

strate that through the exercise of such discretion or its abuse, those in-

dividuals who were given the death penalty were selected in an irrational,

arbitrary, or capricious manner, then the death penalty of this state would

be unconstitutional under this Court's decision in Furman v. Georgia, supra.

The Ohio Department of Mental Health and Mental Retardation keeps

detailed statistics upon each Ohio criminal case which traces the history of

each case from indictment through disposition and contains other relevant

information with respect to age, sex, and race of each defendant. A copy

of the form used to collect this data is reproduced in the Appendix at page

46. Though such documents are Public Records to which Petitioner has an

97-3-27; MO. REV. STAT. sec. 559.010, 559.070; MONT. REV. CODES ANN. sec.

94-2503, 2507; NEB. REV. STAT. sec. 28-401, 28-403; NEV. REV. STAT. sec.

200.030, 200.070; N.H. REV. STAT. ANN. sec 630:l-a, 630:2; N.J. REV. STAT.

ANN. sec. 2A:113-1, 2A:113-5; N.M. STAT. ANN. 40A-2-1, 40A-2-3; N.Y. PENAL

CODE sec. 125.20, 125.25 (McKinney); N.C. GEN. STAT. sec. 14-17, 14-18;

N.D. CENT. CODE sec. 12.1-16-01, 12.1-16-02; OHIO REV. CODE sec. 2903.01(A),

2903.04(A); OKLA. STAT. ANN. title 21 sec. 701, 711; OR. REV. STAT. sec.

163.115, 163.118, 163.125; PA. STAT. ANN. title 18 sec. 2502(a), 2504; R.I.

GEN. LAWS sec. 11-23-1, 11-23-3; S.C. CODE sec. 16-3-20, 16-3-60; TENN. CODE

ANN. sec. 39-2402, 2409; TEXAS PENAL CODE sec. 19.02, 19.05; UTAH CODE ANN. .

title 76 sec. 30-3, 30-5; VT. STAT. ANN. title 13 ch. 53 sec. 2301; VA. CODE

18.2-31, 18.2-32; WASH. REV. CODE sec. 9A.32.030, 9A.32.650; W. VA. CODE

sec. 61-2-1, 61-2-4, 61-2-5; WIS. STAT. ANN. sec. 940.03, 940.05, 940.06;

WYO. STAT. title 6 sec. 6-54, 6-58.

absolute right of access, see Ohio Revised Code Section 149.43, as of the

date of the preparation of this petition he has been unable to convince that

agency of the state to allow him access to such information. Nevertheless,

Petitioner will obtain that data either by agreement or mandamus. Based

upon partial statistics that Petitioner has gathered through the cooperation

of the courts in sixty of Ohio's eighty-eight counties, Petitioner submits,

upon information and belief, that the more complete and reliable statistics

in the possession of the State of Ohio would be relevant to whether or not

Ohio's statutory system of capital punishment is being utilized in an

arbitrary and capricious fashion.

Third. There have been instances where a death cencence has not

been imposed because a mitigating circumstance was found. Given the illu-

sory mature of the mitigation portions of the Ohio statute as discussed

above, this raises the question of whether judges in the state of Ohio are

acting in such a manner as to make the death penalty in Ohio one that is

arbitrary and capriciously imposed. This can be easily ascertained by

reference to the transcripts once those mitigated cases are identified

through the information in the possession of the Ohio Department of Mental

Health.

Accordingly, Petitioner asks that this Court consider the fact

that the Ohio statute itself mandates arbitrary and capricious infliction

of death and to evaluate statistical data concerning Ohio's current statu-

tory scheme in order to determine whether that penalty is being applied in

an arbitrary or capricious manner.

II.

THIS HONORABLE COURT SHOULD GRANT CERTIORARI TO CON-

SIDER WHETHER THE TRIAL COURT'S ADMISSION INTO EVI-

DENCE OF THE TESTIMONY OF A POLICE DETECTIVE CONCERN-

ING A CONFESSION OF AN ALLEGED CODEFENDANT MADE TO A

FELLOW OFFICER AND THAT FELLOW OFFICER'S EXPERIENCE

WHEN CONFRONTING THE PETITIONER WITH THE CONFESSION

WHICH IMPLICATED THE PETITIONER AS THE "TRIGGERMAN"

IN A CRIME IN WHICH HE HAD CONTINUALLY DENIED ANY

INVOLVEMENT, WAS VIOLATIVE OF THE PETITIONER'S SIXTH

AND FOURTEENTH AMENDMENT RIGHT OF CONFRONTATION WHEN

NEITHER THE FELLOW OFFICER NOR THE ALLEGED ACCOMPLICE

TESTIFIED AT TRIAL; AND WHETHER THIS WAS REVERSIBLE

ERROR IN THAT IT CONTRIBUTED SUBSTANTIALLY TO THE

PETITIONER'S CONVICTION AND THERE WAS NO OTHER OVER-

WHELMING EVIDENCE OF GUILT.

At the trial and during the prosecution's case-in-chief, Detective

Edward Duvall, Jr. of the Akron Police Department was called to the stand and

testified regarding the course of the custodial interrogation of the Peti-

tioner herein. Duvall related a conversation between the Petitioner and

another police detective, Captain John Traub. Over the continuing objection

of the Petitioner, Duvall was permitted to testify that Traub informed

Petitioner that his accomplices (Delbert Richmond and William Pitts) had

been arrested, and that both of them had identified him as the german,

T. 790-791.

It is critical to note at the outset the Supreme Court of Ohio's

finding that the trial Court erred in admitting Detective Duvall's account

of Traub's experience. State v. Perryman, 49 Ohio St. 2d 14, 358 N.E. 2d

1040 (1976). The Petitioner maintains that the Supreme Court of Ohio

cementite held that the alleged statements by Pitts, made as an accusatory

statement by Traub, and testified to by Duvall, was hearsay and violative

of the Petitioner's constitutional right to confrontation, as Traub and Pitts

28/

were not called upon to testify.

28/

The Sixth Amendment right of an accused to confront the witnesses

against him is a fundamental right and is made obligatory on the states by

the Fourteenth Amendment, Pointer v.‘ Texas, 380 U.S. 400 at 403 (1965) and

to deprive an accused of the right to cross-examine the witnesses against

him is a denial of the Fourteenth Amendment's guarantee of due process.

Pointer v. Texas, supra, at 405. See also Douglas v. Alabama, 380 U.S. 415

(1965). Here, as noted by the Supreme Court, the trial court admitted the

confession of a co-defendant (Pitts) who did not take the stand to testify

and thereby clearly denied the Petitioner's Sixth and Fourteenth Amendment

right of confrontation. State v. Perryman, supra. See also Bruton v. United

States, 391 U.S. 123 (1968); Pointer v. Texas, supra; Douglas v. Alabama,

supra.

This error was all the more grievous because while this was an

in-custodial interrogation, the testimony at issue did not involve a ques-

tion asked by the police officer. Rather, Detective Duvall's hearsay tes-

timony indicated that Captain Traub made a strong accusatory declaration

about facts over which he had no personal knowledge. By allowing this hear-

say testimony to come before the jury, the State of Ohio not ete prejudiced

the Petitioner's substantial constitutional rights, but gave sanction to a

contrivance by which the jury can be appraised of accusatory statements

made by police officers during interrogation without respect to whether or

not the police officers had personal knowledge of the facts contained there-

in, and without respect to the truth or the falsity of the content of those

declarations. Such wholly unfounded and unreliable testimony cannot be

admitted at trial without prejudice to the accused. For this reason, Peti-

tioner submits that the findings of the Ohio Supreme Court that this con-

stitutional violation amounted to harmless error is clearly erroneous and

will not stand the test of any serious constitutional scrutiny.

The Ohio Supreme Court admitted, in its opinion, that it is com-

monly accepted that "a defendant is entitled to a fair trial, but not a )

perfect one." Lutwak v. United States, 344 U.S. 604, 619 (1953). The ;

admission of Pitts’ confession added critical weight to the state's case

in a form not subject to cross-examination and such admission constituted

prejudicial, reversible error. Absent this opportunity to cross-examine

Pitts, the Petitioner was deprived of his guarantee that the fact finder

have adequate opportunity to assess the credibility of the crucial witnesses

at trial. Bruton v. United States, supra. See also Berger v. California,

393 U.S. 314 (1969); Barber v. Page, 390 U.S. 719 (1968). Since the erro-

neously admitted testimony was used as the chief corroborating evidence to )

the testimony of Delbert Richmond, the state's pivotal witness, the harm-

fulness of the error becomes more evident. This is especially true when

the testimony being corroborated is that of a convicted felon, who prior

to testifying against the Petitioner had changed his position from one of

nonparticipation in the crime to one of an accomplice. T. 629.

The Ohio Court reached its decision of harmless error upon a read-

ing of Brown v. United States, 411 U.S. 223 (1973); Schneble v. Florida, 405

U.S. 427 (1972); and Harrington v. California, 395 U.S. 250 (1969). All of

these cases involved the use at trial of codefendants' confessions in clear

violation of the law expressed in Bruton v. United States, supra. In all

three cases the Court found that there was error but held such error to

be harmless beyond a reasonable doubt. The petitioner maintains that due

to clear, factual, and legal distinctions, the present case is easily re-

moved from the cases on which the Supreme Court of Ohio erroneously relied.

In Brown vy. United States, supra, the Court found that the tes-

timony erroneously admitted was merely cumulative of other overwhelming

and largely uncontroverted evidence properly before the Court. Brown v.

United States, supra, 411 U.S., at 231. Such is not the situation in the

present case. Absent the erroneously admitted statement of Pitts, the

testimony of Richmond, the-State's key witness and alleged co-participant

in the crime, would have lacked sufficient support and corroboration as to

find Petitioner guilty beyond a reasonable doubt. In fact, absent this

erroneously admitted testimony, the other "corroborating" evidence would

be wholly inadequate and largely cont roverted 2¥

In Schneble, this Court held that to be harmless there must be

“Properly admitted evidence of guilt [is] so significant by comparison,

that it is clear beyond a reasonable doubt that the improper use of the

admission was harmless error." 405 U.S., at 430. It is quite understand-

able that this Court found harmless error in Schneble. The defendant

therein admitted to the police that he had strangled the victim. This

Court justly found that:

", . . the petitioner's account of the offense were

internally consistent, were corroborated by other

objective evidence and were not contradicted by any

other evidence in the case... . the allegedly in-

admissible statements of Snell at most tended to

corroborate certain details of petitioner's compre-

hensive confession."

Schneble, at 431.

In the case herein, there was no independent confession by the

defendant, nor was there even any admission of presence as in Harrington 2

29/ the discrepancies and lack of reliability identification tes-

timony by the witness Alldredge will be enumerated in Section IV. Other

,examples of controverted evidence are prevalent throughout the transcript.

the petitioner made statements which placed him at the scene

of the crime. He admitted that Bosby was the triggerman, that

he fled with the other three; and that after the murder he dyed

his hair black and shave off his moustache."

Harrington, 395 U.S., at 252-253.

The defendant has steadfastly denied any involvement or presence at the

crime. When one analyzes the quality of the other evidence, one cannot

reasonably contend that the evidence properly admitted by the trial court

herein is so overwhelming that it renders the Pitts confession insignifi-

‘cant by comparison.

Aside from the testimony of Richmond and Alldredge, who both

suffered greatly from a lack of credibility, the other evidence was cir-

cumstantiabY and it was far from overwhelming.

Nor’can it be concluded, justly on the facts herein, that there

is no “reasonable possibility that the teppensets admitted evidence con-

tributed to the confession." Schneble, 405 U.S. at 432.

In determining if such a reasonable possibility exists, this

Court has found that the “harmless error rule does not require that we

indulge assumptions of irrational jury behavior when a perfectly rational

explanation for the jury's verdict, completely consistent with the judge's

instructions stares us in the face." Schneble, 405 U.S. at 432.

Here the jury made but one inquiry during its deliberations, to

wit: "Would guilt on specification one indicate that the defendant was

the triggerman?" T. 975. The one and only time, in substantive evidence,

the phrase “triggerman" was used, was by Detective Duvall where he stated

Captain Traub (who did not testify) stated Richmond and Pitts (Pitts did

not testify): "[{I]mplicated him as the triggerman." T. 791.

It is obvious, as stated in Schneble, supra, that it "was con-

sidered by the jury." In judging its impact, Harrington determines that

‘it must be harmless beyond a reasonable doubt based upon each individual

record. As stated in Harrington, at 254:

"We do not depart from Chapman; nor do we dilute it

by inference. We do not suggest that, if evidence

bearing on all the ingredients is tendered, the use

of cumulative evidence, though tainted, is harmless

error. Our decision is based upon the evidence in

this record." (Emphasis added.)

31/the Court in étoregarding the confessions of the codefendants in

Harrington, found that the evidence against the defendant, consisting of

direct testimony as opposed to circumstantial evidence, was so overwhelming

that the violation of Bruton v. United States, supra, was harmless beyond a

reasonable doubt. Unlike Harrington's, the case agains the Petitioner, ex-

cluding the erroneously admitted testimony used to corroborate Richmond's

testimony, was "woven from circumstantial evidence."

Harrington, at 254.

The Supreme Court of Ohio Stated simply that the evidence erroneously admit-

ted was "merely cumulative of other corroborating testimony properly before

the jury." Perryman, 49 Ohio St. 2d at 19. With all due respect, it

appears fairly evident that the Supreme Court of Ohio never paused to con-

sider or even inquired into, the degree of impact the confession of Pitts

had on the gueyee’ Nor did it consider in any adequate manner the inherent

weaknesses in the remainder of the state's case.

By erroneously relying on Brown, Schneble, and Harrington as

authority, the Supreme Court of Ohio concluded that an admitted violation

of the right to confrontation; though patently prejudicial and having a

direct impact on the jury's decision, was harmless error beyond a reasonable

doubt. Im a capital case, where death is the determined penalty, such

frivolous consideration of errors of constitutional dimensions cannot be

tolerated.

ar. Justice Brennan, with whom the Chief Justice and Mr. Justice

Marshall joined, dissenting in Harrington v. California, supra, pointed out

the prejudice involved whenever a Bruton violation occurs:

“Even assuming there was more than ample evidence to

establish Petitioner's participation in the crime, a

jury might still have concluded that the case was

mot proved beyond a reasonable doubt. The confessions

of the other defendants were less self-serving and

might well have tipped the balance of the jurors’

minds in favor of conviction. Certainly, che State

has not carried its burden of demonstrating beyond a

icesconadle doubc that these two confessaons did not

contribute to petitioner's conviction.”

Harrington v. California, supra at 217.

———_—-— ee me cme ewe -

THIS HONORABLE COURT SHOULD GRANT CERTIORARI TO CONSIDER

WHETHER THE ADMISSION INTO EVIDENCE IN THE PROSECUTION'S

CASE IN CHIEF OF TESTIMONY THAT AFTER RECEIVING MIRANDA

WARNINGS AND DURING THE COURSE OF INTERROGATION, THE PE-

TIONER EXERCISED HIS RIGHTS_TO REMAIN SILENT AND TO CON-

FER WITH COUNSEL, SO PENALIZED THE PETITIONER FOR

EXERCISE OF SAID RIGHTS THAT HE WAS DENIED THE PROTECTIONS

OF THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS.

At trial and during the prosecution's case-in-chief, Detective

Duvall of the Akron Police Department was called to the stand and testified

regarding the course of the custodial interrogation of the Petioner herein.

Detective Duvall stated that the Petitioner was twice given his Miranda warn-

ings from the standard cara,22/ and included therein was the statement that

the Petitioner "could stop at any time and exercise these rights, and not

answer any further questions, and not make any statements." T. 789. The

Detective stated that when asked if he understood these rights, the Petition-

er answered affirmatively, indicated that he would speak, and denied any

knowledge of the homicide when questioned. T. 790. Over a continuing objec-

tion of defense counsel, Detective Duvall was then permitted to testify that

during the course of the interrogation, and when confronted with an ~ileged

accomplice's accusation that tue Petitioner was the triggerman in the homicide

being investigated, the "Defendant appeared nervous and hesitated, and then

stated that he wished to have an attorney." T. 792.24 A motion for mistrial

based on the admission of this latter teatimony as violative of the Petition-

er's rights was overruled. T. 825.

2 you have the right to remain silent ... . Anything you say can

and will be used against you... . You have the right to talk to a lawyer

and have him present with you while you are being questioned .... You

can stop at any time and exercise these rights, and not answer any questions,

and not make any statements.

34 :

—/ this portion of Detective Duvall's testimony was as follows:

Q. What did Captain Traub bay; relate the conversation that happen-

ed then? .

A. Captain Traub informed Mr. Perryman that he was under arrest for

the aggravated murder of Lawrence Busch which occurred on November 27, 1974,

which occurred in the Star Market parking lot on South Arlington Street.

At this time, Mr. Perryman stated he didn't know anything about a

murder. Captain Traub at that time stated, "Well, I am going to lay it on the

He stated that, "We have arrested Richmond; we have arrested Pitts.”

It is somewhat difficult to determine whether the Supreme Court of

Ohio, in its at times alarming fashion, merely ‘missed’ the serious constitu-

tion issues presented herein; or whether, in painful awareness of them, the

Court just desperately thrashed about to find a means of avoiding reversal of

‘the conviction. The latter seems to be the more likely explanation for the

Court's wholly untenable conclusion that the Petitioner's argument herein was

“without merit."

Although the Ohio Supreme Court refused to acknowledge it, the

trial court's rulings in admitting this testimony and refusing to grant a mis-

trial thereon were clearly erroneous as the prosecution's use of the assertion

and exercise of the Petitioner's right to remain silent and to confer with

counsel cannot withstand scrutiny under the Fifth, sixth 22/ and Fourteenth

Amendments.

The Fifth Amendment privilege against self-incrimination, as incor-

porated through the Fourteenth Amendment due process clause and applied to the

MR. CALHOUN: Now, just a minute. Check this at this point. May

we approach the bench, please?

(THEREUPON, Mr. Kirkwood, Ms. Boyer, Mr. Thompson, and Mr. Calhoun

approach the bench and have a discussion with the Judge out of hearing of the

jury.)

MR. KIRKWOOD: Overruled, Your Honor?

COURT: Yes.

(THEREUPON, the following was offered for the record by Mr. Calhoun

out of the hearing of the jury.)

MR. CALHOUN: Just state this line of conversation between Captain

Traub and the Defendant, William Perryman, at this point I just want a con-

tinuing objection so as not to interrupt the line of questioning.

(THEREUPON, the following proceedings were held in the hearing of

the jury.)

Q. Detective Duvall, I would like you to start again where Captain

Traub says to the Defendant, "I am going to lay it on the line." Go ahead.

A. He stated, "I am going to lay it on the line." He said, "We

have arrested Pitts; we arrested Richmond, both had told aos a stories. Both

had implicated him as the trigger man," and Captain stated that we would like

to hear his story. He then stated that we have traced Mr. Perryman, a gun

purchase of a .38 caliber Blue Seal revolver which was purchased the day be-

fore the homicide in Barberton, Ohio.

At this time, the Defendant appeared nervous and hesitated, and then

stated that he wished to have an attorney. T. 792.

=! the Petitioner stated a desire to speak with counsel, and testimon

indicating this fact was a denial of the Sixth Amendment right to counsel et it

penalized tne exercise ot said right. The right to counsel's presence in the

states in Malloy v. Hogan, 378 U.S. 1 (1964), prohibits presecutorial comment

on the defendant's silence at trial, Griffin v. California, 380 U.S. 609

(1965). The rationale expressed in the Griffin case is that comment consti-

tutes "a penalty imposed by courts for exercising a constitutional privilege.

‘It cuts down on the privilege by making its assertion costly." 380 U.S., at

614. This Court then forbid any judicial imprimatur to be placed on such

practice.

"What the jury may infer, given no help from the court, is

one thing. What it may infer, when the court solemnizes ~

the silence of the accused into evidence against him is quite

another."

380 U.S., at 614.

A prosecutor's act in calling attention to one's exercise of his

rights during custodial interrogation would appear to be equally, if not more,

prejudicial to the accused. In the trial context, the jury will likely be

aware of the defendant's silence even without prosecutorial comment thereon,

as it will be apparent that he has not testified in the proceedings. The

jury has no means of discovering, however, whether or not the defendant re-

mained silent in the face of accusation in custodial interrogation. There is

thus no opportunity for the jury to draw any negative inferences from exercise

of one's right to remain silent at interrogation, unless the prosecutor, with

the approval of the court, should bring it to their attention. It is only

| then that any penalty can attach. 2o/

custodial interrogation setting is generally recognized as being a prophylactic

device "indispensable to the protection of the Fifth Amendment privilege” and

necessary to "assure that the individual's right to choose between silence and

speech remains unfettered throughout the interrogation process." Miranda v.

Arizona, 384 U.S. 436 (1966), at 469. Pursuant to the Miranda decision, when.

an individual requests an attorney, the interrogation must cease until an

attorney is present, Miranda, 384 U.S., at 474. Therefore, the assertion dur-

ing interrogation of one’s right to confer with counsel operates as, and

| becomes equivalent to, the assertion of the Fifth Amendment right. It was pro-

perly so understood by the interrogating officers herein, who promptly ceased

| their questioning upon Petitioner's request for counsel. T. 792. See Baker

|} v. United States, 357 F. 2d. 11 (5th Cir. 1966).

38! the federal courts, possibly as an outgrowth of the no-comment on

silence at trial rule enunciated in Wilson v. United States, 149 U.S. 60

(1893) have repeatedly held that the Constitution forbade use by the prosecu-

tion of the defendant's silence in the face of accusation during interrogation.

See United States v. Lo Biondo, 135 F. 2d. 130 (2nd Cir. 1943); Helton v.

| United States, 221 F. 2d. 338 (Sth Cir. 1955). Whether or not the privilege

was asserted during custodial interrogation or at trial, the courts recog-

|} nized that "most laymen view an assertion of the Fifth Amendment privilege

as a badge of guilt." Walker v. United States, 404 F. 2d 900 (5th Cir. 1968).

| There is thus very little difference between the prejudice resulting from the

| testimony admitted in regard to a defendant's exercise of rights in the

This Court has recognized the potential for penalties attaching to

the assertion of rights in this context and has implicitly expanded the

Griffin rationale to encompass the police interrogation setting. In Miranda

v. Arizona, this Court stated:

"In accord with our decision today, it is impermissible

to penalize an individual for exercising his Fifth

Amendment privilege when he is under police custodial

interrogation. The prosecution may not, therefore, use

at trial the fact that he stood mute or claimed his

privilege in the face of accusation."

384 U.S. at 468, n. 37.

The proscription concisely set out in Miranda was blatantly ig-

nored by the prosecution in the case herein. The prosecution gave a patent

verbal invitation to the jury to consider the Petitioner's silence as evidence

against him. Testimony regarding the Petitioner's assertion of his rights to

remain silent and to counsel was adduced in the prosecution's case-in-chief

to serve solely as substantive evidence of his guilt.

No other justification for its admission can be contended. This

Court recently wrestled with the Ohio practice of permitting impeachment of

the defendant's testimony at trial by crose-examination as to his silence

at the time of arrest. Doyle v. Ohio, 426 U.S. 610 (1976). The "necessity"

pleaded "as justification for the prosecutor's action" in calling attention

to the defendant's exercise of his rights was "the need to present to the jury

all information relevant to the truth of Petitioner's exculpatory story."

426 U.S., at 616-617. This Court noted that "despite the importance of cross-

examination" 426 U.S., at 617 in preventing frustration of the truth-seeking

function of a trial, the giving of the Miranda warnings precluded cross-

examination on one's post-arrest silence, as it would be fundamentally unfair

and a deprivation of due process “to undertake impeachment on the basis of

what may be the exercise of one's rights." 426 U.S., at 619, n. 10. (Emphasis

added.) The error, as perceived by this Court was the prosecution "implying

an inconsistency that the jury might construe as evidence of guilt" 426 U.S.,

post-arrest context, and a prosecutor's comment before a jury on a defendant's

exercise of his constitutional rights. United States v. Nolan, 416 F. 2d.

588 (10th Cir. 1969); Baker v. United States, 357 F. 2d 11 (Sth Cir. 1966);

United States v. Kroslack, 426 F. 2d. 1129 (7th Cir. 1970.)

} at 619, n. 10, (emphasis added) from silence which was “insolubly exbiguovs,

| 426 U.S. at 617. This Court recognized the penalty Ohio was attaching to

| Doyle's exercise of his constitutional rights, and found a denial of due

— as the assurance that etfenee, “will carry no penalty . .. is implicit

| to any person who receives the (Miranda) warnings," 412 U.S., at 618.

If this Court has found a violation of due process results even

when the value of cross-examination is a complicating factor in the case, it

jis abundant ly clear that when the prosecutor uses a defendant's silence at

interrogation in its case-in-chief, thig Court would not hesitate to find error

of constitutional étnensten2/ |

It is somewhat bewildering to counsel that in spite of the plethora

of cases rather firmly establishing the constitutional bar to the state's

prosecuting alleged criminals by means of evidence of their silence, the

| Supreme Court of the state of Ohio, barely six months after this Court's

|decision reversing the impeachment by silence practice in Ohio as unconsti-

chart a course" regarding the use of post-arrest silence at trial that would

“hopefully . . . be both clear and precise" so that the Ohio courts would not

Icontinue "to ratify abuses" of the constitutional rights of its citizens.

pparently, this Court's rather clear and precise admonitions have again gone

nheeded by the Ohio courts, and unfortunately, this Court is again faced

“with a patent example of the unwillingness of the Ohio . . . courts to vindi-

cate, at the expense of reversing a conviction, the rights (this petitioner)

d to a fair trial." Brief for petitioner in Doyle v. Ohio, at p. 19.

In its grudging view of the concepts of individual rights, the Ohio

Supreme Court ruled that the Petitioner had not been denied his constitutional

right to remain silent guaranteed by the Fifth, Sixth, and Fourteenth Amend-

ents because:

37/ see United States v. Hale, 422 U.S. 171 (1975).

2 / ween the dissenting Justices in Doyle v. Ohio would appear to agree

hat when "the need to insure the integrity of the trial by the traditional

ruth-testing devices of the adversary process," 426 U.S., at 630, n. 8, is

mot at issue, a direct inference of guilt from post-arrest silence should not

be permitted to be drawn. See the dissenting opinion of Mr. Justice Stevens

426 U.S., at 634-635. Of course, such an inference cannot be drawn unless

estimony relating to the assertion of one's rights is introduced by the prose-

ution, and the silence is thereby called to the attention of the jury.

"[A]t the time appellant (petitioner) was interro-

gated by Detective Duvall, he had intelligently,

knowingly, and voluntarily waived his Miranda

rights," and "(HJaving done so, -it is inconsistent

for him to say that (introduction of) his appear-

ance and responses during the interrogation vio-

lated his Fifth and Sixth Amendment rights."

State v. Perryman, 49 Ohio St. 2d 21 (1976).

9/ ;

By relying on the waiver concept, the Supreme Court concluded

that “this argument is without merit." With all due respect to that Honorable

Court, the Petitioner contends that its decision is without legal basis and

represents yet another attempt to circumvent application of clear constitu-

tional doctrines.

This Court enunciated most clearly in Miranda that "if at any time

prior to or during questioning" the accused ‘indicates that "he wishes to

remain silent, the interrogation must cease." (Emphasis added.) 384 U.S.,

at 473-474. See also Michigan v. Moseley, 423 U.S. 96 (1975). One's right

to remain silent is thus not forever lost and irretrievable if he should

decide to initially speak with his interrogators. He can exercise his rights

at any time. The Ohio Supreme Court's ruling that as Petitioner had seemingly

initially waived his rights, he cannot complain of constitutional violations

39/

— The Ohio Supreme Court appeared to rely on a previous decision

of that Court, State v. Stephens, 24 Ohio St. 2d 76 (1970), in reaching its

decision herein. The Stephens case asked whether a defendart who chose to

take the stand at trial could then be considered to have waived the privi-

lege against self-incrimination he had asserted in pre-trial proceedings,

so that the prosecutor could then comment in oral argument upon defendant's

silence during these earlier stages of the accusatorial process. 24 Ohio

St. 2d, at 79. The Court looked to various federal cases where comment was

made on the failure to give an exculpatory story at an earlier point. The

Court then found that "Prosecution references to that silence, or any in-

ferences therefrom, are not permissible, unless the record clearly demonstrates

by the action and testimony of the defendant that he has waived the privilege

previously asserted." 24 Ohio St. 2d, at 82. The Supreme Court of Ohio then

concluded (correctly, one could contend, based on Griffin and Doyle, supra)

that in taking the stand the defendant could not be considered to have

“waived the privilege (he had) previously asserted." 24 Ohio St. 2d, at 82.

In the only Supreme Court case interpreting this aspect of Stephens prior to

Perryman, the Court ruled in State v. Young, 27 Ohio St. 2d 310 (1971) that

when a defendant, on examination by his own coumsel, testifies that he chose

to remain silent during in-custody interrogation, this testimony did consti-

tute a “waiver of the privilege previously asserted" under the Stephens rule

such that the prosecutor could permissibly comment on his earlier silence.

when those rights are later specifically asserted and such assertion is

commented on at’ trial, is wholly unecespesbie.

Furthermore, the Petitioner herein was clearly informed that he

could "stop at any time and exercise these rights," T. 789. Like the peti-

tioner in Doyle, he was thus assured by the warnings given him that the exer-

cise of his right to silence at any point would carry no penalty. A contrary

holding must be found to violate due process.

The Supreme Court of Ohio has once again succeeded in ignoring

| plainly reversible error. As this Court has not yet charted as clear and

precise a course as appears to be necessary to vindicate the rights of those

who choose at some point during interrogation to exercise their rights, and

later find themselves subject to a penalty by use of said silence in evidence

against them in the prosecution's case-in-chief, it behooves this Honorable

Court to accept certiorari to clarify the applicability of the Miranda,

| Griffin, and Doyle doctrines in this context. Hopefully, then, arrestees

will not continue to find themselves in a partially uncharted sea, subject

| to the whimsical billowing of individual courts.

40! v0 circuit courts considering this issue have so recognized,

in United States v. Ghiz, 491 F. 2d 599 (1974), the Fourth Circuit found

that an accused's refusal to answer certain questions during interrogation

jand assertion of the privilege thereto, could not be commented on at trial

during the prosecution's case in chief. The circumstances in the case herein

are even more compelling, as a general refusal to answer any further questions

was made. In this regard, the instant case is more closely akin to Booton v.

Hanauer, 541 F. 2d 296 (1976), in which the First Circuit found constitutional

error in introduction of the petitioner's eventual refusal to answer further

questions.

As was forcefully stated in the Petitioner's Motion for Rehearing

before the Supreme Court of Ohio:

“Here the defendant (even if he waived) reasserted

his right to silence upon accusation that he was the

triggerman . .. . While comment may be permissible

as to what he said, within the context of the inquiry

made (if one is made), no reference can be made to his

assertion of a Constitutional right and/or silence.

The State may clearly indicate that the inquiry stopped.

However, the State is precluded from showing it stopped

because the defendant assented his right to remain silent.

This attaches significance, generally adverse, to the

assertion of an unfettered Constitutional right protec-

ted and guaranteed by the Fifth Amendment."

"If this were not the case, every interrogation

initiated could conclude with a narrative accusatory

statement which, if the defendant elected silence, would

be recounted with evidence placed before the jury that,

in the face of the accusation (rather than the question),

the defendant remained silent and requested counsel. That

is precisely what Griffin, supra, sought to avoid."

Petition for Rehearing, at pp. 4-5.

IV.

THIS HONORABLE COURT SHOULD GRANT CERTIORARI TO

DETERMINE WHETHER, WHEN IDENTIFICATION TESTIMONY

IS SOUGHT TO BE ADMITTED AT A CAPITAL TRIAL,

STRICTER SCRUTINY OF SUCH TESTIMONY'S RELIABILITY

IS REQUIRED TO MEET THE DEMANDS OF THE FOURTEENTH

AMENDMENT DUE PROCESS CLAUSE, AND WHETHER, IN ANY

EVENT, THE DUE PROCESS CLAUSE MANDATES EXCLUSION

OF THE IDENTIFICATION TESTIMONY HEREIS.

Over the past several years, this Court has had several occasions

to consider the vagaries of eyewitness identification, and has concluded,

most recently in Manson v. Brathwaite, U.S. __, 21 Cr. L. 3120 (June 16,

1977) that “reliability is the linchpin," Manson, at 15, in the due process

analysis determining the admissibility of identification testimony. "It is

the likelihood of misidentification which violates a defendant's right to due

process," Neil v. Biggers, 409 U.S. 188 (1972), at 198, and thus this Court

has identified five factors’ which are to be weighed against “the corrupting

effect of the suggestive identification itself," Manson, at 3124, in determin-

ing admissibility.

It is Petitioner's contention that the identification procedures in

a capital case should be subject to somewhat greater scrutiny with regard to

their reliability, than that afforded in cases where the penalty of death,

“unique in its severity and irrevocability, " Gregg at 187, is not present.

This Court has recognized that "When a defendant's life is at stake, the Court

has been particularly sensitive to insure that every safeguard is observed,"

Gregg, id. Courts and legislatures have also long recognized that additional

safeguards are necessary to insure reliability in the guilt determining process

42/

in capital cases." Where an individual's life tims hangs in the balance,

41 .

—! these factors are: (1) ‘the opportunity of the witness to view the

criminal at the time of the crime, (2) the witness" degree of attention, (3)

the accuracy of the witness' prior description of the criminal, (4) the level

of certainty demonstrated by the witness at the confrontation, and (5) the

length of time between the crime and the confrontation. Neil at 199-200.

42/,, an example, the Rules of Criminal Procedure of both Ohio and

the Federal Courts provide several areas of distinrtion between capital and

Petitioner contends that an analysis of the reliability in the "totality of

the circumstances," Stovall v. Denno, 388 U.S. 293 (1967) must include ju-

dicial recognition of the fact that an erroneous determination of guilt in

this instance will not be in any sense curable. Although the annals of

criminal law are rife with instances of mistaken identification," United

States v. Wade, 388 U.S. 218 (1967) at 228, this society cannot tolerate

erroneous findings of guilt in capital onsen. To insure, as far as humanly

possible, that innocent persons are not executed in this country, closer

scrutiny by the judiciary of identification testimony prior to its admission

is essential. Support for this contention that closer scrutiny is required

in determining the admissibility of identification testimony in capital cases

may be found in this Court's earlier identification conn!

non-capital offenses on matters touching the reliability of the guilt deter-

mining process: need for an indictment, 0.R. Crim. P. 7(A), F.R.G.P. 7(a);

relief from prejudicial joinder, 0.R.Cr.P. 14. (See also 0.R.C. §2945.20);

number of preemptory challenges to the jury, 0.R.Cr.P. 24(C)(G), F.R.Cr.P.

24(b); and providing for an appeal of right in capital cases, Art. IV, §2,

Ohio Constitution.

49 see generally Borchard, Convicting the Innocent (1932); Wall,

Eye-Witness Identification in Criminal Cases (1965); Frank & Frank, Not

Guilty (1957), and other volumes noted in People v. Anderson, 205 N.W. 2d

| 461 (Sup. Ct. Mich., 1973) at 472.

a In defining the due process guarantee in this context, this

Court has referred to two possible findings: that the confrontation con-

| ducted is “unnecessarily suggestive and conducive to irreparable mistaken

identification," Stovall, at 301-302, and that it is "so impermissibly

| suggestive as to give rise to a very substantial likelihood of irreparable

| misidentification," Simmons v. United States, 390 U.S. 377 (1968), at 384.

The Stovall test can be read as requiring a lesser probability of misidenti-

fication, or, that there merely be a showing that the procedures were "con-

ducive to mistaken identification." "Conducive" is defined as “of conducting

| nature or quality, tending to promote," Webster's Third New International

‘] Dictionary, and thus it can be contended that a tendency toward misidentifi-

| cation is all that need be shown. The Simmons test, used extensively in

| this Court's later cases, could be argued to require a greater probability

| of unreliability, i.e., a “very substantial likelihood." It is thus perhaps

| not insignificant that of all this Court's cases considering identification

testimony, Stovall was the only case which presented a capital charge, murder,

and was the sole case where the death penalty had been imposed upon the

accused. Stovall, at 296.

| This Court may thus find it unnecessary to fashion a new test to

assure greater reliability in capital cases. It could simply reaffirm the

| distinction established by its previous cases. A distinction based on the

| extreme seriousness of the crime and the severity of the penalty is not un-

known in this Court's consideration of constitutional protections given to

| the accused. See Powell v. Alabama, 287 U.S. 45 (1932) and Betts v. Brady ,—:

|} 316 U.S. 455 (1942).

Whether or not this Court should agree with Petitioner's con-

tention that capital cases require a stricter standard of reliability be

applied to the question of admission of identification testimony, the

Petitioner argues that this Court cannot fail to find a sufficient likeli-

hood of misidentification exists in the instant case to require exclusion

of the identification a, |

At trial Michael Alldredge, the only identification witness other

than the alleged co-participant Richmond, was permitted to make an in-court

identification of the defendant and to‘testify as to a prior (pre-trial)

out-of-court identification. Alldredge was at the scene when the Busch

homicide occurred on November 27, 1974, where he observed a black male and

the deceased having some sort of altercation, turning away immediately prior

to the shooting. T. 735. Soon after the crime he gave a description to

46/

the Akron police of this individual.”

At the trial, Alldredge testified that he was approximately 30

feet from the individual, T. 746, had seen only a side profile of him, T.

737-738, and that it was "dark out," T. 746, and that he was surprised,

nervous and frightened at the time of his observation, T. 859, 860. The

witness had difficulty recalling the description he had given regarding

the individual's weight 42/ The description given differs substantially,

45/ one Supreme Court of Ohio used the Simmons test in reviewing the

trial court's admission of the identification testimony herein. The Court

referred to the language in Simmons, at 384, that “convictions based on eye-

witness identification at trial following a pretrial identification by

‘photograph will be set aside on that ground only if the photographic iden-

tification procedure was so impermissibly suggestive as to give rise to a

very substantial likelihood of irreparable misidentification," and concluded

that “applying the test in Simmons" the Court found "[T]he inconsistencies

in Alldredge's testimony do not indicate an identification procedure so

impermissibly suggestive as to give rise to a very substantial likelihood

of irreparable misidentification." Perryman, 49 Ohio St. 2d at 22-23.

If this Court should consider the Simmons test to be the approp-

riate one in a capital case, Petitioner contends that the conclusion reached

by the Ohio Supreme Court was wholly erroneous.

4/one description given the police was that of a: "Negro Male;"

Height - "6'4" to 6'5";" Weight - "235-240 - a very large individual;"

Facial features - He did not know whether this person “had any facial hairs,

beard or mustache;" Clothing- “individual wearing a blue cap, dark jacket.

He (witness) didn't elaborate too much;" Attention given to facial features

-"He (witness) didn't pay too much attention to facial features." T. 859,

866.

ray just don't remember exactly what I said. I know it was high.

It was up there, it wasn't . . . Maybe 195 like that." T. at 747.

in any event, from the actual description of the Petitioner nereta.—

The homicide occurred on November 27, 1974. The Petitioner was

arrested and charged with aggravated murder on March 21, 1975, T. 785-786.

The identification procedure used by the Akron Police Department occurred

on March 24, 1975, three days after the arrest. T. 430.

Some four months after the crime, Detectives Singleton ont Oldacker

went to the home of Mr. Alldredge at about 1:30 p.m., and at that time had

him view six Akron "mug shot" photos (State's Exhibit Number 4), the Peti-

tioner's photo being among them.42/ Although Alldredge stated that he did

not pay attention to the bottom portion of the photos, T. 440-441, the photos

themselves at the bottom had an identifying number, date of arrest, height

and weight of each individual, T. 434-435, 440-441. It should be noted that

there were three (3) photos bearing arrest dates some several years prior

to this crime (the other three being the alleged participants), T. 435-436.

and that according to the descriptions thereon the defendant was the tallest

and heaviest member of the array. Each photo showed two profile sides and

one frontal shot of each individual. After viewing the photos for about

five minutes, witness Alldredge picked out the defendant's photo, stating

that he could only. be "80 to 85% positive" that this was the individual,

T. 738, 432, and that "all colored people looked alike" to him. T. 748-749. .

While then presented with the photographs, Alldredge was informed by the

officers that the defendant was one of the individuals previously arrested

for this crime. T. 749, 431, 441.

Whether the Stovall or Simmons saline is utilized, or this Court

deems it necessary to fashion a new standard for use in capital cases, the

relevant factors in the due process determination will continue to be:

(1) the suggestiveness of the procedure used; (2) the existence of circum-

stances necessitating use of this procedure as opposed to other more reliable

48/ the actual description of the Petitioner is 6'0" in height,

and 164 pounds in weight. State's Exhibit Number 4, photo number 63849.

49/ since the defendant was incarcerated in the Summit and Stark

County jails since March 21, 1975, and lineup facilities were available

at all times throughout this period, T. 430-431, no justification ap-

parently existed for failing to present the Petitioner in a lineup.

Although fine lineup facilities are consistently available for-use, identi-

fication by photographic display appears to be the standard procedure of the

Akron Police Department: "99.9% of all identifications are made through

photo arrays." T. 437 and 874.

or less suggestive methods; (3) the opportunity of the witness to view the

criminal at the time of the crime; (4) the witness’ degree of attention;

(5) the accuracy of the witness’ prior description of the criminal; (6) the

level of certainty demonstrated by the witness at the confrontation, and

-(7) the length of time between the crime and the confrontation.

Suggestiveness

Upon analysis of these factors, it cannot be doubted that the

identification procedure was clearly suggestive. The photos shown to

Alldredge had clear markings relating to the height and weight of the in-

dividuals. Considering that Alldredge's primary recollection was that of

“a very large individual," "a monster," T. at 859, and that Petitioner was

the largest of all those pictured, this suggestiveness cannot be brusquely

ignored. As the dates of arrest were also clearly marked, Alldredge could

easily have unwittingly taken into account the fact that only three of, the

pictures were of persons arrested since the date of this estes! There

was thus no need for the officers to verbally, "suggest which persons in

the pictures were under suspicion," Simmons, at 385, and having been told by

the officers that they had some photographs they wanted him to look at,

T. 440, Alldredge was under some coercive pressure to make an identification

arising from this statement and the officer's presence, Manson, at 3125.

Necessity and Inherent Reliability

There were no circumstances necessitating the use of photographs

with such information clearly printed thereon. The officers herein could

easily have covered these portions of the photographs so as to cancel the

inherent suggestiveness therein. They had plenty of time to make such a

simple modification of the pictures. This was not a situation where the’

alleged “perpetrators were still at large" or where it was essential to

“swiftly determine whether [the officers) were on the right track," Simmons,

— this is true even if Alldredge does not particularly recall look-

ing at the bottom of the pictures, as witnesses are not "apt to be alert

for conditions prejudicial to the suspect," nor are they "likely to be

schooled in the detection of suggestive influences." Wade, at 230. Further-

more, it is clear he had more than adequate time to note the descriptions.

at 385. The Petitioner had been in custody for four days, and the police

already had statements from alleged accomplices purportedly implicating

him in the crime.

It should be noted also that there appear to be no exigent cir-

cumstances for holding a photographic identification rather than a lineup.

Although this Court has refused to adopt a per se exclusionary rule re-

quiring that the most reliable means of identification be utilized or the

out-of-court identification will not be admitted, Manson, at 3123-3124, the

inherent reliability of a given procedure should still be considered as one

factor in the totality of the circumstances. It has been recognized by

this Court that "corporeal identifications are normally more accurate” than

photographic identifications, Simmons, at 386 n. 6, and eieenees of this

fact has led several courts to require that photographic identification

procedure not be resorted to unless a proper corporeal identification is

impossible or difficult 2!

In the instant case, no exigent circumstances whatever appear

to justify the use of photos rather than a lineup. The lineup facilities

were readily available, the Petitioner was in custody at the jail where

numerous other persons were available for coupericea,= and there is no

evidence whatever of any incapacity on the part of Alldredge to come down

to the Akron Police ny The fact that this was the Akron

Police Department's "standard ew should not be allowed to

permit diminished reliability in identification procedures in a capital

case.

Having established that the procedure used was suggestive and

unnecessarily so, there remains consideration of the Neil factors.

=D pease v. Williams, 322 N.E. 2d 819 (Sup. Ct. I11., 1975),

People v. Anderson, 205 N.W. 2d 461 (Sup. Ct. Mich., 1973); People v.

Jackson, 217 N.W. 2d 22 (Sup. Ct. Mich., 1974); State v. Nettles, 500 P.

2d 752 (Sup. Ct. Wash., 1972).

United States v. Gidley, 527 F. 2d 1345, 1352. (5th Cir.,

1976) recommends this practice to federal authorities. "Generally, line-up

identifications are preferable to photographic displays. The government

should make every effort when defendants are in custody to hold line-up

identifications with the presence of counsel . .. . In view of the serious

consequences of misidentification, for the government not to make every

reasonable effort to minimize gratuitously suggestive procedures is inex-

cusable." Accord, dissenting opinion of Mr. Justice Marshall in Manson,

at 3129. See also Wall, supra at 70, 83.

52/

— Weil, at 199.

53/

— Stovall, at 302.

54/-¢. south Dakota v. Opperman, 96 S. Ct. 3092 /1976).

Opportunity to Observe

Alldredge's opportunity to view the criminal was of minimal dura-

tion and extensiveness. He only observed a side profile of the person

during the short altercation in the parking lot before he turned away prior

to the shots being fired, and could not see anyone in the car as it sped by

him, T. at 734-738. The conditions, being 30 feet away as darkness was

falling, were also not such as to provide a good view of the criminal.

Alldredge clearly had “only a brief glimpse of a criminal . . . under poor

conditions." Simmons, at 383.

Degree of Attention

The degree of attention exhibited by Alldredge towards the man

in the parking lot was quite weak. He did not pay "too much attention to

facial features,"

or any attention to how he was dressed, nor could

Alldredge say whether the person observed had any facial hair, T. 859,

860, 737, 747. Unlike the trained police officer in the Manson case,

Alldredge was a "casual" and "passing observer," Manson, at 3124. He could

not “be expected to pay scrupulous attention to detail" for he had no idea

that “his claimed observations would be subject later to close scrutiny and

examination at any trial." Manson, at 3124. His only view of Busch's

assailant came before Busch was killed, while there was simply a fight in

a local parking lot, T. 735. At the time of his observations, Alldredge

had no means of knowing that a serious crime was being committed, in regard

to which he might later be called upon to testify.

Accuracy of Prior Description

The accuracy of Alldredge's prior description is similarly called

into doubt, particularly as to the much greater height and weight of the

individual seen, when compared to that of the Petitioner. A claim is cer-

tainly made here that the Petitioner did not possess the physical charac-

teristics described, cf. Manson, at 3124.

Certainty at Time of Identification

Alldredge was by no means confident of his identification of the

Petitioner, either at the initial identification or at the trial. Since,

"all colored people look alike," T. 748-749, to Alldredge, he could only

be 80% to 852% positive that this was the ant This is not a situation

where when asked whether this photograph was that of the criminal, the

witness answered "no question whatever," Manson, at 3124, or where the wit-

ness had “no doubt," Neil at 200, as to the identity of the culprit. See

also Simmons, at 385. Even at the trial, Alldredge was less than wholly

certain as to whether the man whose picture he had chosen was in the court-

room, answering he was "pretty sure," T. 738. In a capital case, where the

death penalty has been imposed, a more certain witness is absolutely essen-

tial to preserve the constitutional guarantee that one's life will not be

taken without due process of the law.

Lapse of Time

The significant time lapse between the crime and the confronta-

tion is also a telling point. It was some four months after the crime that

Alldredge chose the Petitioner's picture from the suggestive photo array.

A lapse of several months is “a serious negative factor in most cases,”

Neil at 201. As Alldredge himself noted at the trial, "it's been so long,"

T. 739, since the incident (7 months) that he couldn't be positive of either

his in-court identification or of whose picture he had chosen. As only a

casual observer, Alldredge's memory could be expected to fade somewhat more

than a victim of a crime. Neil, at 200.

Furthermore, in the instant case, a likelihood of irreparable

misidentification was created by the officer's conduct. Having chosen a

photograph, however uncertainly, Alldredge was told by the officers who had

awaited his decision that in fact, the man pictured and chosen had been

SI a5 has recently been stated by the Sixth Circuit: "We have in

the past noted that there is a great potential for misidentification when

a witness identifies a stranger based solely upon a single, brief observa-

tion. This is especially true when the observations are made at a time of

great stress and excitement . . . and when the stranger is of a different

race." Webb v. Havener, 549 F. 2d 1081, 1086 (1977). See also Manson,

at 3124, where this Court noted that a different race factor was not at

issue therein.

arrested for this crime, T. 441. Under these circumstances, he was “not

likely to go back on his word later on" at trial, Wade, at 229. Alidredge

clearly would “retain in his memory the image of the photograph rather than

of the person actually seen, reducing the trustworthiness," Simmons, at

383-384, of his subsequent courtroom identification. This is even more

assured when the identification in court was directly tied to the pre-

trial peccedure. =

On consideration of the totality of the circumstances, it is

thus abundantly evident that the Ohio Supreme Court overlooked a patent

denial of due process rights in admission of testimony from an unneces-

sarily suggestive identification procedure clearly giving rise to irreparable

misidentification. It is the fervent hope of this Petitioner that this Court

will not allow the Ohio courts to so brush aside clear violations of con-

stitutional rights, particularly in a capital case where the reliability of

the guilt determining process must be maintained at the highest level attain-

able by our criminal justice system.

5H, And did you pick any of them as being the man?

A. Yes, I did.

Q. And is the man whose picture you picked out of those six:

pictures, is he in the Courtroom today?

A. I am pretty sure.

Q. Okay, would you please point him out?

(Indicating the defendant.)

T. 738.

CONCLUSION

For all the foregoing reasons Petitioner asks that the Writ of

Certiorari be issued to the Supreme Court of the State of Ohio so that

these issues may be heard by this Honorable Court.

Respectfully submitted,

Lbed Lola ont

Albert S. Rakas ZA

Margery B. Koosed

Robert J. Croyle

Richard L. Aynes

Appellate Review Office

School of Law

University of Akron

Akron, Ohio 44325

Parke G. Thompson

713 Centran Building

Akron, Ohio 44308

William F. Calhoun

141 E. Main Street

Kent, Ohio 44240

Counsel for Petitioner

CERTIFICATE OF SERVICE

I hereby certify that all persons required to be served have

been served and that I have sent by first class mail a copy of the foregoing

Petition for a Writ of Certiori to counsel for the Respondent, Stephen M.

Gabalac, Summit County Prosecutor, City-County Safety Building, Akron,

Ohio 44308 on this 247A day of June, 1977.

“t= = rear * ts

i +,

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.