Petition — Jago v. Papp

i FILED.

\ AUG 15 un

Mon Court, U. K.

} MICHAEL RODAK, JR., CLERK |

Supreme Court of the United States

October Term, 1977

No. AA * 2 5 *

ARNOLD R. JAGO, Superintendent,

Petitioner,

VS.

TIMOTHY PAPP,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

i}

JOSEPH R. GRUNDA,

Lorain County Prosecutor

JohN D. Prncura III,

General Counsel

Rosert D. GAry,

Assistant Lorain County Prosecutor

226 Middle Avenue

Elyria, Ohio 44035

Attorneys for Petitioner, Arnold R.

Jago, Superintendent

— — — . —

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647

TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTIONAL BASIS

e ED ons ccrccnssnes-cocsoneracecacsnsntcesenrsevecses

I. Whether the Doctrine of Stone v. Powell.

US. _.., 96 S. Ct. 3037 (1976), Limiting Habeas

Corpus Review in the Fourth Amendment Con-

text Should Be Extended to Limit Federal

Habeas Corpus Review of Fifth and Sixth

Amendment Claims, Where, Under the Facts of

This Case, There Was an Opportunity for Full

and Fair Hearing of All Claims in the State

Courts

LLL eee n eee ee ee ee)

CONSTITUTIONAL PROVISIONS INVOLVED

STATEMENT OF THE CASE

STATEMENT OF FACTS

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APPENDICES:

A. Verdict of the Court of Common Pleas of Lorain

County, Ohio (October 18, 1973)

B. Opinion of the Court of Appeals of Lorain

County, Ohio (June 12, 1974)

C. Order of the Supreme Court of Ohio Denying

Motion for Leave to Appeal (November 22,

1974)

D. Judgment and Memorandum Opinion of the

United States District Court for the Southern

A/

Als

Ir

District of Ohio, Western Division (Judgment,

February 26, 1976; Opinion February 19, 1976) Al7

E. Opinion of the Court of Appeals for the Sixth

Circuit (March 8, 1977) A31

F. Memorandum and Certification of the United

States District Court for the Southern District

of Ohio (May 6, 1977) A33

G. Order of the United States Court of Appeals for

the Sixth Circuit (June 14, 1977) A36

H. Order of the United States Court of Appeals

for the Sixth Circuit Staying Mandate (July 11,

1977) A38

TABLE OF AUTHORITIES

Cases

Brewer v. Williams, |: eae „97 S. Ct. 1232 (1977)

„ ‘a kes — 3, 9, 10

Escobedo v. Illinois, 378 U.S. 478 (1964) 12

Frazier v. Cupp, 394 U.S. 731 (1969) . 12

Miranda v. Arizona, 384 U.S. 436 (1966) ................ 6, 7, 8, 12

O Berry v. Wainwright, 546 F.2d 1204 (5th Cir. 1977) 12

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) ............ 12

Stone v. Powell, ........ , § Sees , 96 S. Ct. 3037 (1976)

ee Te 2 . enen

Townsend v. Sain, 372 U.S. 293 (1963) 11,12

Constitutional Provisions

United States Constitution, Fourth Amendment 2, 9,

10, 11, 13

United States Constitution, Fifth Amendment 2, 9,

10, 11, 12, 13

United States Constitution, Sixth Amendment 2, 3,

9, 10, 11, 12, 13

Supreme Court of the United States

October Term, 1977

No.

ARNOLD R. JAGO, Superintendent,

Petitioner,

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

OPINIONS BELOW

The opinion of the Court of Appeals of Lorain County,

Ohio, Case No. 2180, is unreported (Appendix B, page A7).

The opinion of the Ohio Supreme Court, Case No. 74-778,

is unreported (Appendix C, page Al6). The opinion and

memorandum of the United States District Court For The

Southern District of Ohio, Western Division, Case No. C-1-

75-301, are unreported (Appendices D and F, pages Al7

and Al9). The orders of the United States Court of Ap-

peals For The Sixth Circuit, Case No. 76-1402, remanding

to the District Court for Supplementation and Affirming

the Judgment with Modification, are not reported (Appen-

dices E and G, pages A31 and A36).

JURISDICTIONAL BASIS

The decision of the United States Court of Appeals

for the Sixth Circuit was entered March 8, 1977 (Appendix

D, page Al7). After remand to the District Court, the

decision was entered by the Court of Appeals on June 14,

1977 (Appendix G, page A36). Jurisdiction is conferred

by U.S. C., Section 1254 (1). A Stay of the Mandate of

the Court of Appeals was granted July 11, 1977 (Appen-

dix H, page A38). An extension of the Motion to Extend

Order Staying Mandate was granted by the Court of Ap-

peals on August 8, 1977, to August 24, 1977.

QUESTION PRESENTED

I. Whether the Doctrine of Stone v. Powell.

U. S., 96 S. Ct. 3037 (1976), Limiting Habeas Corpus

Review in the Fourth Amendment Context Should Be

Extended to Limit Federal Habeas Corpus Review

of Fifth and Sixth Amendment Claims, Where, Under

the Facts of This Case, There Was an Opportunity for

Full and Fair Hearing of All Claims in the State Courts.

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the Fifth and Sixth Amendments

to the United States Constitution:

Amendment V

No person shall be held to answer for a capital

or otherwise infamous crime, unless on a presentment

or indictment of a grand jury, except in cases arising

in the land or naval forces, or in the militia, when

in actual service in time of war or public danger; nor

shall any person be subject for the same offense to

be twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property,

without due process of law; nor shall private property

be taken for public use without just compensation.

Amendment VI

In all criminal prosecutions the accused shall en-

joy the right to a speedy and public trial, by an impar-

tial jury of the State and district wherein the crime

shall have been committed, which district shall have

been previously ascertained by law, and to be informed

of the nature and cause of the accusation; to be con-

fronted with the witnesses against him; to have com-

pulsory process for obtaining witnesses in his favor,

and to have the assistance of counsel for his defense.

STATEMENT OF THE CASE

Timothy Papp, hereinafter Respondent, was indicted

by the October 1973 Term of the Lorain County, Ohio,

Grand Jury for the crimes of first degree murder, murder

in the perpetration of a rape, rape of a female under the

age of twelve, and sodomy in violation of criminal sections

of the Ohio Revised Code (TR 6, 7, 8).

The case was tried in the Court of Common Pleas of

Lorain County, Ohio, Case No. 16862, to a jury which re-

turned guilty verdicts to all the charges except sodomy

which was dismissed by the trial court. Accordingly, the

trial court sentenced respondent to three concurrent terms

of life imprisonment (Appendix A, page Al).

4

On pre-trial motion to suppress and on appeal, respon-

dent raised the allegations which form the basis of his

subsequent petition for habeas corpus. These issues were

considered by both the state trial court and appeals court.

The trial court judge, after a full evidentiary hearing

(MR 3-104), issued an order denying the Motion to Sup-

press (See Appendix B, page A8), and the appeal court

after a full consideration of the record issued a unanimous

opinion affirming the judgment of the trial court (Ap-

pendix B, page A7).

An appeal to the Supreme Court of Ohio was dismissed

on November 22, 1974, for lack of a substantial constitu-

tional question (Appendix C, page A16).

On August 14, 1975, respondent filed a petition for

writ of habeas corpus with the United States District Court

for the Southern District of Ohio, Western Division. On

February 26, 1976, the District Court entered judgment

granting respondent’s petition for writ of habeas corpus

(Appendix D, page A17).

Petitioner on March 4, 1976, filed a notice of appeal

with the United States Court of Appeals for the Sixth

Circuit.

On April 6, 1976, petitioner filed an appeal with the

United States Court of Appeals for the Sixth Circuit. On

March 8, 1977, the Circuit Court remanded the case to the

District Court to supplement the record with tape record-

ings of respondent and to certify to the Circuit Court any

grounds then existing for the District Court’s reconsidera-

tion of its opinion.

On May 6, 1977, the District Court supplemented the

record and certified that the tape recordings did not alter

its prior opinion. The district judge did note that he

5

would, if he had had the authority, amend his judgment

in light of footnote 12 of Brewer v. Williams US.

once „97 S. Ct. 1232 (1977) at 1243 (Appendix F, page A35).

On June 14, 1977, the Sixth Circuit Court of Appeals

affirmed the determination of the District Court that the

March 23, 1973 interrogation of respondent, Papp, violated

his constitutional rights as set forth in the opinion of the

District Court filed therein on February 19, 1976, and ac-

cordingly remanded the cause to the District Court to

modify its judgment as to the admission of evidence con-

sidered in the light of Brewer v. Williams, supra, and to

grant respondent Papp’s petition for writ of habeas corpus

unless retried by the State within a reasonable time (Ap-

pendix G, page 36).

On July 5, 1977, a petition for stay of the mandate

was filed with the Sixth Circuit Court of Appeals, and on

July 11, 1977, the mandate of the Court of Appeals was

stayed pending the application for certiorari (Appendix H,

page 38).

STATEMENT OF FACTS

On March 12, 1973, Roxie Ann Keathley, age nine,

disappeared while collecting pop bottles in her neighbor-

hood in Lorain, Ohio (TR 83-89, 106). Respondent, Tim-

othy Papp, resided in the same neighborhood and was

seen with Roxie Ann shortly before her disappearance

(TR 31). On March 13, 1973, in connection with their

investigation of the disappearance of the little girl, the

police transported the respondent to the Lorain County

Sheriff's Office around 11:30 p.m. (TR 337). There Papp

was questioned by Detective Zieba, in the presence of

Detectives Mahoney and Penrod (TR 337). Prior to the

questioning, Papp was advised of his constitutional rights

as required by the Supreme Court in the case of Miranda v.

Arizona, 384 U.S. 436 (1966) (TR 338). At that time,

Detective Zieba questioned respondent about a trunk (TR

338). The respondent stated that he transported the trunk

to his mother’s on the morning of March 13, 1973, but when

his mother would not answer the door, he dumped the

trunk behind a nearby grocery store (TR 340). At the

conclusion of the interrogation, the respondent took the

detectives to the rear of the grocery store, but no trunk

was found (TR 341-342). The respondent expressed no

knowledge concerning the disappearance of the girl (TR

340-341). It was in the course of this interrogation that

he indicated that he had contacted an attorney (MR 82),

but there is no indication that he desired the attorney’s

presence. At the end of the approximately two hour

period, he was returned home by the deputies with the

advice that he contact an attorney and inform him of the

interrogation (TR 341; MR 91).

Throughout the next week, in their continuing inves-

tigations, the deputies had several more brief encounters

with respondent who was continually asked concerning any

knowledge he might have of the girl’s disappearance (TR

342; MR 78-79). The meetings with the officers of the

Sheriff's Department were voluntarily initiated by the

respondent (TR 342). He, in fact, waited at the apartment

complex where he and the Keathleys lived so he could talk

to the detectives (TR 342).

It was during the course of these encounters that

respondent agreed to take a lie detector test on the evening

of March 21, 1973, and arrangements were made to admin-

ister the test at his home (MR 98). At this time the

respondent was not the only suspect (MR 98).

7

On March 21, 1973, Papp was arrested for threatening

his mother-in-law on a warrant signed by his mother - in-

law, and placed in county jail (TR 79). Late that same

aftern / on, respondent requested to speak with Detective

Zieba regarding the location of his wife and child (MR 60).

Zieba, in the presence of Detectives Mahoney, Bulger, and

Penrod, carried on a conversation which eventually cen-

tered on the disappearance of Roxie Ann Keathley, who

had now been missing for just over one week. No Miranda

warnings were given at this conversation nor was an

attorney for the respondent present (MR 59, 65).

Respondent, during the course of the conversation,

asked Detective Zieba for some whiskey as he had diffi-

culty sleeping and was told he could not have whiskey.

He was given a small cup of wine, which he accepted

(TR 353-354). Respondent continued his denial of any

relevant information concerning the child’s 7isappearance

and was returned to his cell (TR 354).

On March 22, 1973, respondent was transported to the

municipal court on the unrelated charge (MR 101). The

judge of the municipal court advised respondent of his

right to counsel, and that if he could not afford counsel, one

would be appointed (MR 102). Respondent waived the

right to counsel (MR 102), pleaded no contest to the charge

and was sentenced to ten days in the county jail.

On March 23, 1973, while in custody the respondent

requested to see Detective Zieba. Detective Zieba con-

versed first about the respondent’s wife and child. Even-

tually the conversation shifted to the disappearance of

Roxie Ann Keathley (TR 344). No Miranda warnings

were given the respondent at the start of the conversation

regarding the missing girl and the respondent’s trunk (MR

65). The entire conversation was taped by the Sheriff's

detectives (MR 100, 103). On two occasions, the respon-

dent requested an attorney, was told of his options by the

detectives, and the respondent responded in a negative

manner to his options before questioning resumed (MR

67, 69, 82, 90; TR 383, 384). At the time of the conversa-

tion, Papp had taken medication for his nerves prescribed

by a physician (MR 71-72).

As on the 21st, Papp was given some wine (TR 354).

Prior to consuming the wine, Papp broke down and stated

he “didn’t mean to hurt the little girl.” (TR 347). Papp

offered to draw a diagram of the location of the body and

lead them there (TR 348). The diagram was made, but

the detectives declined to allow the respondent to accom-

pany them to the scene (TR 347). After an unsuccessful

search, the detectives returned to respondent’s cell and

inquired as to whether he was still willing to lead them

to the body (TR 350). The respondent agreed and volun-

tarily, without requesting the assistance of counsel, led

the deputies to the child’s body (TR 350).

The trunk was found on March 26, 1973 (MR 84). The

respondent, after being arraigned in the Court for murder

and having counsel appointed, requested to see Detective

Zieba. Zieba after giving the respondent a Miranda warn-

ing, the respondent, without reservation or request for

counsel, drew a diagram of the location of the trunk and

at the same time denied knowledge of the death of the girl

(TR 357).

ARGUMENT IN SUPPORT OF GRANTING THE WRIT

I. WHETHER THE DOCTRINE OF STONE v.

POWELL, ........ US. ........ „ 9% S. Ct. 3037 (1976),

LIMITING HABEAS CORPUS REVIEW IN THE

FOURTH AMENDMENT CONTEXT SHOULD BE

EXTENDED TO LIMIT FEDERAL HABEAS

CORPUS REVIEW OF FIFTH AND SIXTH

AMENDMENT CLAIMS, WHERE, UNDER THE

FACTS OF THIS CASE, THERE WAS AN OP-

PORTUNITY FOR FULL AND FAIR HEARING

OF ALL CLAIMS IN THE STATE COURTS.

The Petitioner would submit that habeas corpus relief

of Fifth and Sixth Amendment claims of state prisoners

should be restricted to the requirements of Stone v. Powell,

aor US. ........, 96 S. Ct. 3037 (1976). This Court held in

Stone v. Powell, supra, that where the state has provided

an opportunity for a full and fair litigation of a Fourth

Amendment claim a state prisoner may not be granted

habeas corpus relief in the federal system on the grounds

that evidence which was obtained in an unconstitutional

search and seizure was introduced at trial. Justice Powell,

in his concurring opinion in Brewer v. Williams US.

MBE , 97 S. Ct. 1232 at 1247 (1977) raised the question

whether the rationale of Stone v. Powell, supra, should be

applied to “those Fifth and Sixth Amendment claims or

classes of claims that more closely parallel claims under

the Fourth Amendment.”

The Court noted in Brewer v. Williams, supra at 1247

per Powell, Jr. concurring, that in contrast to Fifth and

Sixth Amendment claims, Fourth Amendment claims uni-

formly involve evidence that is “typically reliable and

often the most probative information bearing on the guilt

10

or innocence of the defendant.” See also Stone v. Powell,

supra at 3050. The facts in this case parallel the type of

evidence traditionally suppressed in a Fourth Amendment

context.

As in Brewer v. Williams, supra, the evidence of how

the child’s body was found is of unquestionable reliability

and its probative value is certain. The respondent not only

drew a diagram of where the body was (TR 347), but after

the Sheriff’s Department was unable to find the body, the

respondent led the deputies to the location where the body

was recovered (TR 350). The vosts in excluding such

evidence are apparent. Not only is the truthfinding pro-

cess deflected, but in many instances the guilty are set

free. See, Stone v. Powell, supra.

The Supreme Court recognized that there was “no

additional contribution, if any, of the consideration of

Fourth Amendment claims in collateral review.” Stone v.

Powell, supra at 3051. The same rationale applies in a

Fourth, Fifth, or Sixth Amendment context. There is no

more reason to believe that the “educative effect” of grant-

ing a state prisoner a federal habeas corpus review in a

Fifth or Sixth Amendment claim would be any different

than a claim raised under the Fourth Amendment. Nor

is the risk and subsequent deterrent effect of a state con-

viction which had been affirmed on direct review being

overturned in a federal habeas proceeding any greater

under the Fourth, Fifth, or Sixth Amendment. As this

Court noted in Stone v. Powell, supra at 3051 any possible

deterrence of Fourth Amendment violations is based upon

the dubious assumption that law enforcement authorities

would fear that federal habeas corpus review might reveal

flaws that weren’t revealed at trial or on appeal in the

state system. This assumption has no more validity in the

context of the Fifth and Sixth Amendment. Nor could it

11

be argued that the Lorain County Sheriff 's Office attempted

to conceal the nature of the interrogation with the Respon-

dent when, in fact, the entire March 23, 1973 conversation

was recorded and submitted to the State Court for review.

Whether it is in the context of furthering Fourth,

Fifth, or Sixth Amendment rights the goal of furthering

such rights is far outweighed by other values vital to a

rational system of criminal justice. Stone v. Powell, supra.

‘This is particularly true where the reliability of the evi-

dence is beyond question.

The Petitioner recognizes that if Fifth and Sixth

Amendment claims cannot be invoked on federal habeas

corpus review, the state court must have provided the re-

spondent with a full and fair hearing of his claims. The

Supreme Court in Stone v. Powell, supra, at 3052 would

not allow federal habeas corpus on Fourth Amendment

claims where the “State had provided an opportunity for

a full and fair hearing,” but the Court did not define the

term “opportunity for full and fair hearing.”

The Court’s reference to Townsend v. Sain, 372 US.

293 (1963) in n. 36 provides some guidance in this deter-

mination. The Townsend decision held that a federal court

must grant an evidentiary hearing to a habeas applicant

seeking to obtain release from a state court conviction

when the applicant did not receive a full and fair eviden-

tiary hearing in a state court. The court then went on to

set out criteria to be used by the federal court in determi-

nation of when an evidentiary hearing would be granted.

At least one court in defining the term “opportunity

for full and fair hearing” for purposes of Stone v. Powell,

supra, has found that where there are facts in dispute, full

and fair consideration requires 1 by the fact-

finding court and at least the availability of meaningful

12

appellate review by a higher state court. Where, how-

ever, the facts are undisputed, and there is nothing to

be served by ordering a new evidentiary hearing, the full

and fair consideration requirement is satisfied where the

state appellate court, presented with an undisputed factual

record, gives full consideration to defendant’s constitu-

tional claims. O Berry v. Wainwright, 546 F.2d 1204 (5th

Cir. 1977).

Here, whether the standard to be applied is that of

Townsend v. Sain, supra, or whether the test for purposes

of a habeas corpus are to be further defined by the Court,

the State has afforded respondent with a full and fair

litigation of his federal claims at both the trial level and

appellate level of the state court.

Respondent was afforded a full evidentiary hearing at

his pretrial motion to suppress (MR 3-104). The Appellate

Court heard arguments upon the record of the trial court,

including the transcript of the proceedings; and the briefs,

and oral argument by counsel for the parties. The Court

reviewed each assignment of error and made finding of

fact and law (Appendix B, page A7). There was no new

evidence offered by respondent and all material facts

were developed at the state court hearing (MR 3-104).

Thus, the Respondent’s Fifth, See Miranda v. Arizona,

384 U.S. 436 (1966), and Sixth Amendment, See Escobedo

v. Illinois, 378 U.S. 478 (1964), rights and the question of

the voluntariness of any waiver of counsel, See Frazier v.

Cupp, 394 U.S. 731, and the voluntariness of any subsequent

statements, See Schneckloth v. Bustamonte, 412 U.S. 218

at 227 (1973) were fully and fairly determined by two

tiers of State Courts. These questions should not have

been then again subject to collateral review in the federal

system in light of the competence of the State system

to deal with those issues; See footnote 35, Stone v. Powell,

supra at 3341.

18

Denying federal habeas corpus on a Fifth or Sixth

Amendment claim does not pose any danger to the relia-

bility of the fact-finding process and would foster public

respect for the ability of the law and the administration of

justice to determine ultimate guilt or innocence. Thus,

in view of the minimal contribution and substantial societal

costs to the effectuation of the Fifth and Sixth Amend-

ment, a state prisoner who has had a full and fair hearing

in the state courts, should not be granted federal habeas

corpus relief on Fifth and Sixth Amendment grounds.

CONCLUSION

The doctrine of Stone v. Powell limiting habeas corpus

review in the context of the Fourth Amendment should

be extended to the Fifth and Sixth Amendments where

there was a full and fair hearing of the claims in the State

Courts. For the foregoing reasons, the Petition for Writ of

Certiorari should be granted and reversal entered and

remanded.

Respectfully submitted,

JOSEPH R. GRUNDA

Prosecuting Attorney Lorain

County, Ohio

By: Rosert D. Gary

Assistant Prosecuting Attorney

and

Joun D. Prncura, III

General Counsel

226 Middle Avenue

Elyria, Ohio 44035

Attorneys for Petitioner, Arnold

R. Jago, Superintendent

Al

APPENDIX A

VERDICT OF THE COURT OF COMMON PLEAS

COURT OF LORAIN COUNTY, OHIO

(Dated October 18, 1973)

Presiding: Hon. Pau. J. Mixus, Judge

No. 16862

COURT OF COMMON PLEAS

Lorain County, OHIO

THE STATE OF OHIO

vs.

TIMOTHY PAPP

Murder in the First Degree; Rape of

a Female Under the Age of Twelve;

Sodomy

4th Day Trial

VERDICT—GUILTY

Sentenced—Penitentiary

This day again came the Prosecuting Attorney on be-

half of the State of Ohio, and the Defendant being again

brought into Court in custody of the Sheriff, and being

represented by counsel, also came the Jury heretofore

impaneled and sworn, and the trial again proceeded. And

the said Jury having heard the balance of the testimony,

the arguments of counsel and the Charge of the Court,

retired to their room in charge of the Bailiff for delibera-

tion. There being no further need for the thirteenth (13th)

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said Bailiff, with their Verdict in writing, signed by

concurring Juror in the words and figures following, to

and fourteenth (14th) or alternate jurors, they are

wit:

discharged from all further responsibility in this

terwards came said Jury, conducted into open

Al

26 . . * ————— * 5

AN. C1 “VERDICT. Guilty

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Term, A. D. 19.23...

Court of 3 Vlcas, wherein...

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THE STATE OF OHIO

= Ta PP Maa Vo. 16862

TIN. FAN Juilirtiueut for (Second Count)

) Seder” in the First degree (ONC 2992.

ile. nerpetrating..ranpad)

——— —

Wa, the Jury in this case, duly unjuneled and sworn and affirmed, find the

lefendant Timothy Papp , Guilty

[nevooe SBT OR...in.. She. First.Degrec...( PRC.

nd form us. Ha

2902.01} in manner

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stands charged in the Indictment., in the Second Couz:.

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3 TIAOTUY...PAPP Indiclment for * (Third Count)

"ay Rape of Female Under Twelve

————5““n 1 j (ORC......2995...02) —

5 5 u, the Jury in this tase, duly im rpaneled anc sworn and affirmed, find the

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und forin as. ALL.

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A6

And thereupon said Defendant be, and he hereby is,

sentenced to be again taken to the Jail of Lorain County,

Elyria, Ohio; thence within five (5) days to the Ohio

State Penitentiary, there to serve an indeterminate sen-

tence according to law for violation of Murder in the

First Degree (O.R.C. 2901.01) in the first count; Murder

in the First Degree (O.R.C. 2901.01) on the second count;

and Rape of Female Under Twelve (O.R.C. 2905.02) on

the third count. Defendant and his counsel being advised

of the provisions of Ohio Revised Code Section 2947.25,

and being further advised that the punishment of each

of the above convictions is life imprisonment which the

Court would impose concurrently; Defendant thereupon

waived psychiatric examination and report as provided

in said section 2947.25. It is the JUDGMENT OF THE

LAW AND THE SENTENCE OF THE COURT that the

Defendant be sentenced to the Ohio State Penitentiary

to serve a sentence of life imprisonment on each of the

three counts. All Counts to be served concurrently. De-

fendant to pay costs of prosecution.

A/

APPENDIX B

OPINION OF THE COURT OF APPEALS OF

LORAIN COUNTY, OHIO

(Dated June 12, 1974)

C.A. No. 2180.

IN THE COURT OF APPEALS,

NINTH JUDICIAL DISTRICT.

State of Ohio )

) SS:

Lorain County)

STATE OF OHIO,

Plaintiff-Appellee,

vs.

TIMOTHY PAPP,

Defendant-Appellant.

APPEAL FROM JUDGMENT ENTERED

IN THE COURT OF COMMON PLEAS OF LORAIN CounrTY,

Case No. 16862.

DECISION and JOURNAL ENTRY.

This cause came on to be heard April 15, 1974, upon

the record in the trial court, including the Transcript of

Proceedings; and the briefs. It was argued by counsel

for the parties and submitted to the court. Each assign-

ment of error was reviewed by the court and, upon review,

the following disposition made:

HUNSICKER, J.

The defendant (appellant) herein, Timothy Papp, was

indicted, tried and convicted for the murder of Roxie Ann

Keathley, aged nine years. He was found guilty of (1)

murder in the first degree; (2) murder in the commission

of rape; and (3) rape. A fourth count of the indictment

was dismissed by the court.

The plea which the defendant made to the indictment

was not guilty, and not guilty by reason of insanity. The

defendant, after commitment to Lima State Hospital, was

found to be “presently sane.” Trial was had after this

report was received.

Counsel for defendant in this appeal says:

“1. The trial court erred in overruling defen-

dant’s motion to suppress evidence in that defendant

was not advised of his constitutional rights as outlined

in Miranda v. Arizona, prior to the interrogation on

March 21 and March 23, 1973.

“2. The trial court erred in overruling defen-

dant’s motion to suppress evidence in that defendant

was denied the right to assistance of counsel on March

23, 1973, and incriminating statements were obtained

from defendant after defendant’s request for counsel.

“3. The trial court erred in overruling defen-

dant’s motion to suppress evidence in that the incrim-

inating statements of defendant were not given volun-

tarily.

“4. The trial court erred by admitting into evi-

dence the incriminating statements made by defendant

and defendant must be granted a new trial.

5. The trial court erred in allowing the testi-

mony of a witness not included in the list provided

A

to defendant, pursuant to Ohio Criminal Procedure

Rule 16.

“6. The trial court erred in overruling defen-

dant’s motion for mistrial when six of the jurors ad-

mitted receiving harassing phone calls after their

names and addresses were published in the news-

paper.”

On March 13, 1973, the parents of Roxie Ann Keathley

reported her disappearance from home as of March 12,

1973. A witness for the state of Ohio told of seeing Roxie

Ann in the presence of a man in a white trench coat like

the one worn by Papp. Papp was interrogated, 2 ‘ter being

given the Miranda warning, and returned to his home

after such questioning.

On March 21, 1973, Papp was arrested on a warrant

signed by his mother-in-law, and placed in jail, after being

convicted of a misdemeanor. While in jail, Papp asked

to talk to officer Zieba concerning the wife and child

of Papp, who had left home. No Miranda warning was

given when the conversation with officer Zieba, and two

or three other officers discussed the disappearance of Roxie

Ann, and conversation about a trunk that Papp was to

have taken to the home of his parents. Some wine was

given to Papp at this time because he asked for something

to calm his nerves.

On March 23, 1973, at Papp’s request, officer Zieba,

and the three other officers, talked with Papp. At first,

the conversation related to Papp’s wife and child. Officer

Zieba located Mrs. Papp and told Papp that she would

be told she could see Papp Sunday afternoon. No addi-

tional Miranda warning was given Papp, and the officers

began a several hour conversation with him regarding

the Keathley girl. Papp became very excited and was

given another small glass of wine. Papp then, in a moment

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of great agitation, said that he did not mean to hurt Roxie

Ann. After he became calm, the conversation resumed.

He was told that if he had no money, an attorney would

be appointed when he went to court. He was assured

that the Judge would be told of his cooperation. He

told the officers where the body of Roxie: Ann was located

and, when the officers could not find the place, he went

with them to the place where the body was found.

Papp was given some medication prescribed by a Doc-

tor Sigalove. The doctor did not come to the jail

to see Papp, but relayed the prescription through a call

to a pharmacy, after which the officers secured the pre-

scribed medication.

The trunk, in which Papp had carried the body of

Roxie Ann, was not located at that time but, on March

26, 1973, Papp asked to talk to the officers. A Miranda

warning was given, and Papp drew a map of the location

of the trunk, which was then found.

Papp was charged with the crime of murder on Mon-

day, March 26, 1973, and no further conversation was had

with him regarding the crime.

During the period beginning with the disappearance

of Roxie Ann, the officers met Papp many times and

talked with him, and he assisted them in trying to locate

the child. Papp was critical of the officers for not find-

ing his wife and, when in jail, he requested to talk about

his wife’s disappearance, from which conversations there

were questions about Roxie Ann. At no time did Papp

say that he did not wish to talk to the officers about

the girl’s disappearance. At these times, he was asked if

his parents should be contacted about hiring an attorney,

and he said “no” to all such suggestions.

The offer of Papp to help locate the body was a

voluntary offer on his part and not the result of threats,

All

coercion, or other improper conduct by the officers. It

was on Monday that Papp was charged with the offense

of murder, since the discovery of the body was made

on Saturday night. Papp claimed to the officers that on

the night of the rape-murder, he had consumed two-fifths

of whiskey and had taken some pills.

On March 26, 1973, he was charged with the offense

and taken to court. While being brought back to jail,

Papp again asked to talk to officer Zieba, who again gave

him a Miranda warning. Papp then said that he wanted

to talk to the officer and proceeded to implicate the sus-

pect referred to earlier, who, upon investigation, was com-

pletely exonerated. It was during this conversation that

Papp drew a diagram of the place where the trunk was

found, covered with leaves and tree limbs.

It was after the arraignment of March 26th that coun-

sel was appointed for Papp. Counsel then filed a motion

to suppress evidence, which was denied. During the trial,

defense counsel twice orally moved to suppress all evidence

of talks with Papp and the matters resulting from such

talks. The trial court overruled these oral motions,

There were two occasions during the conversations

when Papp became nervous and excited and a small paper

cup of wine was given him; and, on the second such

occasion, the jail doctor was called for a prescription, which

was obtained and given to Papp by officer Zieba. Earlier,

Papp had requested whiskey, but the officers gave him

wine. After he drank it, his nervous condition was eased

and he acted normal thereafter. He also took the doctor’s

prescription, a mild tranquilizer, for the nervous condition.

Timothy Papp did not testify in his own defense. We

do not know the extent of his education, but we do know

that he owned books, and among them some encyclopedias.

We conclude that he understood the nature of the Miranda

warning such as the first given to him.

Al2

It is obvious in this detail of the evidence, that the

chief question this court has before it is the admissibility

of the evidence received as a result of the interrogations

of Papp conducted on March 13, March 21, March 23,

and March 26, 1973. Only the interrogation of March

26 occurred after Papp was charged with the offenses

herein. A thorough Miranda warning was given Papp

on March 13 when he came to the sheriff's office, as

requested by the officers who brought him in and took

him home. Papp owned no automobile. On March 21

and March 23, he was in jail on a misdemeanor conviction

and contacted officer Zieba about an unrelated subject,

but continued to discuss thereafter, with the officer, the

disappearance of Roxie Ann. At no time did Papp insist

on a lawyer or even request that one be obtained for

him, although he did say that they should call Mr. Otero

(a lawyer), which officers did. He was not available and

no request thereafter for a lawyer was renewed.

Counsel for Papp has urged the failure to apply the

Miranda warning requirement. He cites, as authority for

the proposition that before every conversation with a sus-

pect in a criminal case, the suspect must be given a sec-

ond or repeated complete Miranda warning, the cases of

Miranda v. Arizona, 384 U.S. 436, 16 L ed 2d 694, 86

S. Ct. 1602; Evans v. Swenson, 332 F. Supp. 360; U. S.

v. Vanterpool, 394 F. 2d 697; and U. S. v. Osterburg,

90 S. Ct. 2216, 423 F. 2d 704. We do not find the cited

cases as authority for such claims. There is no doubt

that Papp was given a first and complete Miranda warn-

ing on March 13, and again a renewal warning on March

26, after being charged with the crime.

Papp at no time said that he killed Roxie Ann, only

that he did not mean to hurt her. Papp never said that

he raped the child, or strangled her, or molested her in

; ==

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any way. The evidence against him is largely circumstan-

tial, beginning with the time that Papp, in his white trench

coat, was seen walking toward his apartment entrance with

Roxie Ann, until the trunk, and body of Roxie Ann, were

found at the place where Papp took the officers.

A confession (much less the information given by

Papp), is not necessarily invalid because the Miranda warn-

ing is not repeated in full each time the interrogation

process is resumed after an interruption. Tucker v.

U. S., 375 F. 2d 363, at 365-366; and Miller v. U. S.,

396 F. 2d 492, at 495-496.

In Miller v. United States, 396 F. 2d 492, at 496,

the court said:

“The defendant reads Miranda as requiring that

the full warning be given each time the interrogation

process is renewed. This is not the first time this

contention has been made before this Court. A sim-

ilar one was made in Tucker v. United States, 375

F. 2d at 365-366. In that case, this Court affirmed

the defendant’s conviction on a finding that the defen-

dant had been warned of all of his ‘Miranda’ rights

at the outset of the interrogation process. The im-

plicit holding in Tucker was that a confession is not

necessarily invalid because the ‘Miranda’ warning is

not repeated in full each time the interrogation process

is resumed after an interruption.”

In United States of America v. Kinsey, 352 F. Supp.

1176, at 1178, the court said:

“There is no requirement that the Miranda warn-

ing be repeated immediately prior to the commence-

ment of every interrogation session. They do not

become ‘stale.’”

See, also: Commonwealth v. Abrams, 278 A. 2d 932.

Al4

The Miranda warning must be given at the beginning

of interrogation, and nothing is said, in Miranda v. Ari-

zona, supra, regarding repetition of such warning at later

stages of such interrogation.

There is nothing in the evidence before this court

to show that Papp did not understand the nature and

purpose of the warning that officer Zieba gave to him

on March 13 and March 26. There is nothing in the

evidence before us that shows the statements Papp made

to the officers were not freely and voluntarily made. There

is nothing shown in this evidence that Papp really desired

to see a lawyer, even when told that the state would

supply counsel if he could not pay for such services.

We reject assignments of error numbers one, two,

three and four, on the authority and reasoning set out

above.

Objection is made by assignment of error number

five that the name of one witness (Mr. Zimmerman, the

manager of the apartment where Papp lived), was not

given to defense counsel on the list of witnesses for the

prosecution requested by counsel for Papp. The name

of Mr. Zimmerman does appear on the sheriff’s record

of witnesses kept by that office. The nature of his testi-

mony was not such as to incriminate Papp. Zimmerman’s

testimony concerned a description of the premises, which

premises certainly the defense must have examined before

trial.

The Rules of Civil Procedure are to be construed

and applied “to effect just results by eliminating delay,

unnecessary expenses and all other impediments to the

expeditious administration of justice.” Rule 1(B). To

reverse the judgment and remand the cause for rehearing,

based on assigned error number five, would not effect just

results, eliminate delay, or prevent unnecessary expense.

+ & —-

Al5

The case of United States v. Kelly, 420 F. 2d 26, does

not apply in this instance. We reject assigned error num-

ber five.

In consideration of assigned error number six, the

record shows that the jurors, on oath, said they could

well and truly try the case, notwithstanding some tele-

phone calls and such statement was accepted by the trial

Judge. We find no error in the conduct of the trial Judge

in that respect.

We have examined all claims of error and find none

prejudicial to the substantial rights of the appellant, Tim-

othy Papp. The judgment is affirmed.

Judgment affirmed.

The court finds that there were reasonable grounds

for this appeal.

It is ordered that a special mandate issue out of this

court, directing the Court of Common Pleas to carry this

judgment into execution. A certified copy of this journal

entry shall constitute the mandate, pursuant to Rule 27

of the Rules of Appellate rocedure.

Ten (10) days from the date hereof, this document

shall constitute the journal entry of judgment, and it shall

be file stamped by the Clerk of the Court of Appeals,

at which time the period for review shall begin to run.

Appellate Rule 22(E).

Exceptions.

/s/ Myron T. BRENNEMAN (sgd)

Presiding Judge for the Court.

BRENNEMAN, P.J., and Victor, J., concur.

(Huwnsicker, J., retired and assigned to active duty under

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

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APPENDIX C

ORDER OF THE SUPREME COURT OF OHIO

DENYING MOTION FOR LEAVE TO APPEAL

(Dated November 22, 1974)

No. 74-778

THE SUPREME COURT OF OHIO

TE STATE or OHIO,

Crry or COLUMBUS.

STATE OF OHIO,

Appellee,

vs.

TIMOTHY PAPP,

Appellant.

APPEAL FROM THE COURT OF APPEALS

FOR LORAIN COUNTY

This cause, here on appeal as of right from the Court

of Appeals for Lorain County, was heard in the manner

prescribed by law, and, no motion to dismiss such appeal

having been filed, the Court sua sponte dismisses the appeal

for the reason that no substantial constitutional question

exists herein.

—~ —

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APPENDIX D

JUDGMENT AND MEMORANDUM OPINION OF

THE UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF OHIO, WEST-

ERN DIVISION

(Judgment Filed February 26, 1976;

Opinion Filed February 19, 1976)

No. C 1 75-301

IN THE

UNITED STATES DISTRICT COURT

For THE SOUTHERN DISTRICT or OHIO

WESTERN DivIsION

TIMOTHY PAPP,

Petitioner,

v.

ARNOLD R. JAGO, SUPT.,

Respondent.

JUDGMENT

This action came before th. Court, Honorable Timothy

Hogan, United States District Judge, presiding, upon peti-

tioner’s application for writ of habeas corpus and respon-

dent’s return of writ, including exhibits submitted there-

with. Upon consideration, and for the reasons set forth

in the memorandum opinion of the Court of February

19, 1976, the court concludes that petitioner’s constitutional

rights were violated by the introduction at trial of evidence

Als

obtained on March 23, 1973 in violation of the requirements

of Miranda v. Arizona, 384 U.S. 4 (1966).

Accordingly, it is Ordered and Adjudged that the peti-

tion for writ of habeas corpus is meritorious, and that

the writ shall issue if within a reasonable period of time

petitioner is not retried by the State of Ohio without

the evidence obtained by the March 23, 1973 interrogation.

IT IS SO ORDERED

/s/ Tomoruy Morcan

United States District Judge

Alꝰ

No. C-1-75-301

UNITED STATES DISTRICT COURT

For THE SOUTHERN DISTRICT or OHIO

WESTERN DIVvISION

TIMOTHY PAPP,

Petitioner,

vs.

ARNOLD R. JAGO, SUPT.,

Respondent.

MEMO

This is a petition for writ of habeas corpus pursuant

to 28 U.S.C. 2254. Petitioner, Timothy Papp (in support

of his petition) alleges that he was not advised of his Fifth

and Sixth Amendment rights prior to making incriminat-

ing statements; and that during his custodial interrogation

he asked for an attorney on two occasions, such requests

being denied. Further, petitioner alleges that his incrim-

inating statements were generally involuntary.

On October 18, 1973, following a trial by jury, Papp

was found guilty of first degree murder, murder in the per-

petration of a rape, and rape. Papp was thereafter sen-

tenced to life imprisonment and is presently confined at

the Southern Ohio Correctional Facility in Lucasville,

Ohio.

The above convictions were affirmed by the Court of

Appeals for the Ninth Judicial District of Ohio and the

Ohio Supreme Court. The claims raised here by the peti-

tioner were also raised on appeal in the state courts. There-

fore, petitioner has exhausted his state remedies. The

A20

matter is now before the Court on the petition for writ of

habeas corpus, respondent’s return, the transcript of the

hearing on the motion to suppress, and the trial transcript.

FACTS

On March 12, 1973, Roxie Ann Keathley, age nine, dis-

appeared while collecting pop bottles in her neighborhood

in Lorain, Ohio (Tr. 83-89). Petitioner resided in the same

neighborhood and was seen with Roxie Ann shortly before

her disappearance. On March 13, 1973, in connection with

their investigation of the disappearance of the little girl,

the police transported the petitioner to the Lorain County

Sheriff's Office around 11:30 P.M. (Tr. 337). There, peti-

tioner was questioned by Detective Zieba, in the presence

of Detectives Mahoney and Penrod. Prior to the question-

ing, petitioner was advised of his constitutional rights as

required by the Supreme Court in the case of Miranda v.

Arizona, 384 U.S. 436 (1966) (Tr. 338). At that time, De-

tective Zieba questioned petitioner about a trunk. Peti-

tioner stated that he transported the trunk to his mother’s

on the morning of March 13, 1973, but when his mother

would not answer the door, he brought the trunk behind

a grocery store nearby.’ Petitioner denied any knowledge

of the whereabouts of Roxie Ann Keathley and at 1:00

A.M. the questioning ceased; the petitioner was brought

home (Tr. 338-342; 362-365).

Between the dates of March 13, 1973 and March 21,

1973, Detective Zieba had several more conversations with

petitioner relative to the missing girl. At no time during

this period did petitioner indicate any knowledge of her

whereabouts (Tr. 342, motion Tr. 60).

1. At the conclusion of the interrogation, Papp took the

detectives to the rear of the grocery store, but there was no

trunk found there.

21

On March 21, 1973, petitioner was arrested pursuant

to à complaint charging him with making harassing phone

calls. He was then taken to the Lorain County Jail. Late

that same afternoon (March 21, 1973), petitioner requested

to speak with Detective Zieba regarding the location of

his wife and child (Motion Tr. 60). Present during this

conversation were the petitioner, Detectives Zieba, Ma-

honey, Bulger, and Penrod (Tr. 366). The conversation

lasted from approximately 4:30 P.M. to 9:00 P.M. No

Miranda warnings were given, and the bulk of the conver-

sation centered on the disappearance of Roxie Ann Keath-

ley. Again, petitioner expressed no knowledge concerning

the disappearance of the girl (Tr. 367-371).

On March 23, 1973, at approximately six o’clock in the

evening, petitioner again requested to talk to Detective

Zieba concerning his wife and child. Again no warnings

were given and Detective Zieba eventually shifted the con-

versation to the disappearance of Roxie Ann (Tr. 372). De-

tectives Mahoney, Penrod, and Bulger were present in the

room with the petitioner and Detective Zieba.

On two occasions, petitioner asked for an attorney but

one was not provided nor did questioning cease. At ap-

proximately 8:00 P.M., petitioner “broke down, went ber-

serk, slammed his fists down on one of [the] folding chairs,

tried to hit the tape recorder and hit his head against the

wall and [claimed] he was going to kill somebody; [he]

had to be handcuffed] and he really went into hysterics”

(Tr. 345). Also, while in a hysterical state, the petitioner

yelled, “man, I am sorry, I didn’t mean to hurt the little

girl” (Tr. 347). At that time, petitioner was given a small

cup of wine to calm down and indeed he did calm down.?

2. On March 23, 1973, petitioner was taking medication

for an ulcer and also had taken some aspirin. Doctor Sigalove

testified that in his opinion a small amount of alcohol coupled

with a small amount of valium (a mild tranquilizer) would

produce no adverse effect (Tr. 418-419).

A22

Subsequently, during the conversation, petitioner said that

the girl would not be in the trunk, but that he would take

them to the trunk and also to the child’s body. The detec-

tives, instead, requested petitioner to draw them a map

showing where the body was. When the detectives went

out, they failed to find the body. Therefore, they returned,

asked the petitioner if he would mind accompanying them,

and he showed them to the body.

On March 26, 1973, petitioner was formally charged

with the murder and rape of Roxie Ann Keathley. After

his first court appearance, petitioner engaged in another

conversation with Detective Zieba. This time the Miranda

warnings were given to petitioner. Petitioner continued

to.deny any knowledge of the death of the girl, and at-

tempted to implicate one Jose Mendiola. Also, petitioner

drew a diagram showing the location of the trunk, which

was later discovered.

During the trial, experts testifying on behalf of the

state stated that blood and hair samples found in the trunk

matched the blood and hair of the girl (Tr. 312-322). Also

witnesses testified that petitioner was seen with the girl

shortly before she disappeared.

First, the state claims that Miranda warnings are only

necessary when police initiate questioning, and since peti-

tioner admittedly initiated the conversations on March 21

and March 23, 1973, no warnings were necessary. We

disagree. It is undisputed on the record that petitioner

initiated conversations concerning the location of his wife

and child. (emphasis added.) The police then caused the

conversation to shift to the disappearance of Roxie Ann

Keathley. There is no showing by the state on the record

that the petitioner ever wished to initiate a conversation

about the disappearance of Roxie Ann. When the conver-

A23

sation shifted, the warnings should have been given, under

the spirit, if not the letter, of Miranda.

Related to this argument, the state contends that the

verbal exchanges did not amount to “interrogation,” but

rather were “conversations.” This is an exercise in seman-

tics. It is clear from the record that the petitioner was

questioned for prolonged periods in the presence of three

and sometimes four, detectives. This was precisely the

type of interrogation described and criticized in Miranda.

See also Williams v. Brewer, 509 F.2d 227, 233 (8th Cir.

1975), app. pending U.S. , where “casual conversa-

tions” which produced incriminating statements in the ab-

sence of warnings were held to be contrary to constitutional

requirements.

The Ohio Court of Appeals held that the Miranda

warnings were not necessary on March 23, 1973 because

they had been given once on March 13, 1973, citing Tucker

v. United States, 375 F.2d 363 (8th Cir. 1967) and Miller

v. United States, 396 F.2d 492 (8th Cir. 1968). It is true

that the Miranda warnings do not become stale and there

is no need to repeat them at the initiation of each new

interrogation. See United States v. Kinsay, 352 F. Supp.

1176 (E.D. Pa. 1972); Moore v. Hopper, 387 F. Supp. 931

(M.D. Ga. 1974). Nevertheless, in most instances, this

Court would question whether a defendant was aware

of his rights ten days after he had been given the warnings.

There is no per se rule, and, in each case, the Court

must determine whether the defendant fully understood

his rights. See Hill v. Whealon, 440 F.2d 629 (6th Cir.

1974). In this case, it appears that the petitioner was

aware of his rights on March 23, 1973. At least, he was

3. Petitioner has not filed any memorandum of law in this

action. His only filing is the petition for writ of habeas corpus.

Therefore, this Court has had to note the issues by means of its

own examination of the record.

A24

sufficiently aware of his rights to request an attorney

and to have one present during interrogation. Therefore,

as to the first claim, it is held that the petitioner was

aware of his rights on March 23, and was not prejudiced

by the lack of Miranda warnings on that date.

II

For his second claim, petitioner states that he re-

quested the assistance of a lawyer twice during the interro-

gation of March 23, 1973, and at no time during the inter-

rogation was he provided with one. The State of Ohio

responds by arguing that (1) the petitioner initiated the

conversation, and (2) that after his request, he changed

his mind and voluntarily continued the conversation. Nei-

ther of the state’s arguments in this regard is persuasive.

The Supreme Court in Miranda spoke in unequivocal

terms:

If the individual states that he wants an attorney,

the interrogation must cease until an attorney is pres-

ent. At that time, the individual must have an oppor-

tunity to confer with the attorney and to have him

present during any subsequent questioning.

It was admitted by Detective Zieba, on cross-examination,

that after each request by petitioner for an attorney, the

conversation continued on (Tr. 383-384).

Q. And wasn’t it during this period that on two

occasions he asked for an attorney and he didn’t get

one on these occasions?

A. (Lt. Zieba) On these occasions, he asked for

an attorney and I advised him of what I could do

for him.

Q. And you continued your interrogation?

A. Yes that is correct.

A25

Q. Now, on these occasions when he asked for

an attorney, isn’t it true that he remained silent for

some periods of time?

A. Yes. He would remain silent for a minute

or two, probably.

Q. And during this period, you would be talking

and asking questions?

A. I would be talking to him and inquiring on

which attorney, or how we could reach him, yes.

Q. Didn’t, on the second request for an attorney,

didn’t he then remain silent and you continued to

interrogate him about the girl at that time?

A. No

Q. Was there an interrogation about the trunk

and its location?

A. I recall that it could have been, yes. We

could have been talking about the trunk, yes.

Q. Wasn’t it you that continued the interrogation

while he remained silent?

A. I continued, yes.

As stated above, the state contends that the petitioner

changed his mind about an attorney and voluntarily con-

tinued the conversation. The Court in Miranda addressed

this question as follows:

If the interrogation continues without the presence

of an attorney and a statement is taken, a heavy

burden rests on the government to demonstrate that

the defendant knowingly: and intelligently waived his

privilege against self-incrimination and his right to

retained or appointed counsel

G- | - @

A26

An express statement that the individual is willing

to make a statement and does not want an attorney

followed closely by a statement could constitute a

waiver. But a valid waiver will not be presumed

simply from the silence of the accused after warnings

are given...

Presuming waiver from a silent record is impermis-

sible. The record must show, or there must be

an allegation and evidence which show, that an ac-

cused was offered counsel but intelligently and un-

derstandingly rejected the offer. Anything less is

not waiver.

Carnley v. Cochran, 364 U.S. 506, 516 (1962); Mi-

randa v. Arizona, 384 U.S. at 475.

There is nothing in this record to indicate that the peti-

tioner affirmatively changed his mind about wanting an

attorney. Therefore, we hold that there was no waiver

of the assistance of counsel during the interrogation and

petitioner’s Sixth Amendment right was violated.

III

Finally, petitioner contends that, under the totality

of the circumstances, any incriminating statements made

by him during his interrogation were not voluntary. Spe-

cifically, petitioner contends that certain statements were

made while under the influence of alcohol, or drugs, or

both. After a thorough examination of the record, we

find no merit to this claim. The evidence is uncontradicted

that petitioner was given only a small amount of wine,

and had taken a mild tranquilizer (Tr. 375, 376). Dr.

Sigalove, who prescribed the medication, stated that the

combination of the drug and alcohol, to such a small extent

would have no adverse effect on the petitioner (Tr. 422).

A27

However, there is other evidence which would tend

to show that the incriminating statements were involun-

tary. On March 21, 1973 and March 23, 1973, the law

enforcement officers questioned petitioner for a combined

total of at least seven hours (Tr. 343, 345, 374). There

was no attorney present during questioning (Tr. 383). Pe-

titioner had been kept in isolation for three days (Tr.

379-380); and finally on March 23, 1973 became “hysterical,

went berserk” and blurted out. . I didn’t mean to

hurt her.” He then drew a diagram to indicate the loca-

tion of the girl’s body.

In Hill v. Whealon, 490 F.2d 629 (6th Cir. 1974), the

Court cited with approval and quoted the following pas-

sage:

It is neither necessary nor desirable to undertake to

fashion a per se rule to be applied in all cases pre-

senting the Miranda issue. The crucial question al-

ways must be: has the prosecution sustained its heavy

burden of demonstrating that the defendant was effec-

tively advised of his rights, and did he knowingly

and understandingly decline to exercise them?

Hughes v. Swenson, 452 F.2d 866, 868 (8th Cir. 1971).

The above question must be answered in the negative

in this case. The “heavy burden” placed upon the prosecu-

tion to show that a suspect waived his rights or waived

the right to the presence of an attorney has not been

met. It was in applying the above standard that the

Ohio Court of Appeals committed error. In its opinion

affirming the conviction, the Ohio Court of Appeals stated

the following:

There is nothing in the evidence before this Court

to show that Papp did not understand the nature and

purpose of the warning that officer Zieba gave to

him on March 13 and March 26. There is nothing

A28

in the evidence before us that shows the statements

Papp made to the officers were not freely and volun-

tarily made. There is nothing shown in this evidence

that Papp really desired to see a lawyer, even when

told that the state would supply counsel if he could

not pay for such services.

The above paragraph implies that the defendant had the

burden of proving involuntariness. That is incorrect. Mi-

randa specifically states that “a heavy burden rests on

the government to demonstrate [waiver] ....A valid

waiver will not be presumed simply from the silence of

the accused... .”

Therefore, we hold that the respondent has not met

his heavy burden of establishing that the petitioner freely

and voluntarily waived his Fifth Amendment rights and

his Sixth Amendment right to counsel during interrogation,

and considering the totality of the circumstances, the state-

ments made by petitioner on March 23, 1973 were involun-

tary.

It remains to be determined whether the statements

made by the petitioner in the absence of warnings were

incriminating and/or prejudicial. The Ohio Court of Ap-

peals, in its opinion affirming the conviction, seemed to

imply that petitioner never actually “confessed” to the

crime, but rather gave “information.” This distinction

is not supported by Miranda. The Miranda case was con-

cerned not only with the police obtaining confessions that

were involuntary but also “any incriminating statement.”

The Court in Miranda stated:

No distinction can be drawn between statements which

are direct confessions and statements which amount

to “admission” of part or all of an offense. The priv-

ilege against self-incrimination protects the individual

A29

from being compelled to incriminate himself in any

manner; it does not distinguish degrees of incrimina-

tion. Similarly, for precisely the same reason, no dis-

tinction may be drawn between inculpatory statements

and statements alleged to be merely “exculpatory.”

Therefore, the spontaneous exclamation “I didn’t mean

to hurt her” while not precisely a confession, was indeed

an incriminating statement. Also, the statement of the

petitioner that he would lead police to the body, though

not an admission that he in fact killed the girl, was clearly

incriminating. Likewise, the map of the location where

the girl might be found was incriminating.

IV

Incriminating statements were also made on March

26, 1973. Detective Zieba testified that upon his return

from Lorain Municipal Court, petitioner initiated another

conversation concerning the disappearance of Roxie Ann

Keathley (Tr. 353). At that time, Detective Zieba again

read the petitioner his rights. Although petitioner denied

any involvement in the death of the girl, he did draw

a diagram showing the location of the missing trunk. He

also attempted to implicate an acquaintance, Jose Mendiola

(Tr. 354-358). The issue here is whether the incriminating

statements given March 26, 1973 are inadmissible because

of the state’s failure to have an attorney present, as re-

quested on March 23, 1973. For the reasons stated below,

it is held that the statements and other evidence obtained

on March 26, 1973 are admissible.

First, it is clear that on March 26, 1973, the petitioner

initiated the conversation concerning the disappearance

of the girl. This is unlike previous occasions wherein

the petitioner initiated conversations concerning an unre-

lated subject (ie., his wife and child), but was steered

A30

into a conversation concerning the disappearance of the

girl. Nothing in the record suggests any police coercion

on March 26, 1973.

Second, petitioner was fully advised of his rights be-

fore talking. Miranda did not provide that all incrimi-

nating statements were inadmissible. “After such warn-

ings have been given, and such opportunity afforded him,

the individual may knowingly and intelligently waive these

rights and agree to answer questions or make a statement.*

384 U.S. at 479.

Therefore, having held that the statements made on

March 26, 1973 were admissible, it follows that any evi-

dence obtained as a result of such statements is likewise

admissible. That would include the trunk and its contents.

CONCLUSION

The Court, having found that the petitioner’s consti-

tutional rights were violated during his pre-trial confine-

ment prior to his state court conviction, shall issue the

writ, unless the petitioner is retried within a reasonable

time without the introduction of any evidence obtained

by means of the March 23, 1973 interrogation. That in-

cludes all incriminating statements made, as well as evi-

dence of the death of the girl and evidence of the physical

condition of the body.’ An appropriate judgment may

be presented.

IT IS SO ORDERED.

/s/ Torn S. Hocan

United States District Judge

4. F th ost recent f

Miranda, = Michigan v. ete “Te (1975) .

5. This latter evidence is excluded as “fruits of the po

sonous tree.” See Wong Sun v. United States 171 US. 471

(1963); Alderman v. United States, 394 US. 2 12 (1969).

A31

APPENDIX E

OPINION OF THE COURT OF APPEALS

FOR THE SIXTH CIRCUIT

(Filed March 8, 1977)

No. 76-1402

UNITED STATES COURT OF APPEALS

For THE SrxTH Cmcurr

TIMOTHY PAPP,

Petitioner-Appellee,

v.

ARNOLD R. JAGO,

Respondent-Appellant.

ORDER

Before: Prck, LiveLy and ENGEL, Circuit Judges

This matter is before the court upon the appeal of

the respondent from a district court order and judgment

granting the petitioner’s writ of habeas corpus unless the

petitioner is retried within a reasonable time but without

the introduction of evidence which the court found was

unlawfully obtained by means of an interrogation of the

petitioner on March 23, 1973.

Upon oral argument before this court, counsel for the

respondent argued that the district court did not have

the benefit of the tape recordings of the interrogations

of the petitioner, although it read the transcript thereof.

While this appears to have been through the neglect of

A32

the respondent and without fault on the part of the district

court, it was urged that the adequacy of the district court’s

review was impaired by its inability to consider the actual

tape recordings of the police interrogations which had

been considered by and were a part of the record in

the state court.

Because of the unique importance of the issues in-

volved in these proceedings and from an abundance of

caution,

IT IS ORDERED that the case is remanded to the

district court for the limited purpose of affording the re-

spondent the opportunity, within such reasonable time as

that court shall direct, to supplement the record by the

addition of any tape or voice recordings relevant to the

confessions and statements of the petitioner under chal-

lenge in this appeal, and for the purpose of allowing the

district court an opportunity to review the same. Within

a reasonable time thereafter, the district court shall trans-

mit any such recordings and other appropriate record to

this court together with a certification as to whether, in

its opinion, any grounds exist for the reconsideration by

it of the opinion and judgment heretofore entered. Re-

mand herein is without surrender of jurisdiction over this

appeal, which is retained.

ENTERED BY ORDER OF THE COURT

/s/ Jon P. HEHMAN

Clerk

A33

APPENDIX F

MEMORANDUM AND CERTIFICATION OF THE

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF OHIO

(Filed May 6, 1977)

No. C-1-75-301

UNITED STATES DISTRICT COURT

For THE SOUTHERN DISTRICT or OHIO

WESTERN DIVISION

TIMOTHY PAPP,

Petitioner,

V.

ARNOLD JAGO, SUPERINTENDENT,

Respondent.

On remand from

No. 76-1402

UNITED STATES COURT OF APPEALS

For THE SIXTH CIRCUIT

TIMOTHY PAPP,

Petitioner-Appellee,

v.

ARNOLD JAGO, SUPERINTENDENT,

Respondent-Appellant.

MEMO AND CERTIFICATION

On March 8, 1977, this cause was remanded for limited

purposes described in the remand order and with instruc-

tions—the Court of Appeals retained jurisdiction.

A34

Pursuant to the order, this Court, on March 30 and 31,

1977, on notice and with counsel for each side present, sup-

plemented the record as directed.

Six (6) tapes were played in open court. The tapes

are identified as Hearing Exhibits 1 through 6. The tapes

constitute all the recordings which are claimed relevant

by either side, and cover the interrogations of March 13, 21,

23, and 26, 1973.

The tapes have previously been transmitted to the

Clerk of the Court of Appeals along with a recorder which

is calibrated to some extent to the tapes.

A transcript of the hearings (proceedings) of March

30 and 31, 1977 has been filed in this cause and is for-

warded herewith as a supplement to the record. The tapes

are not transcribed. The staff of this Court does not possess

the facilities necessary for that. The State was offered the

opportunity to secure such expert transcription and, evi-

dently, all concerned are in agreement that such be not

necessary. The tapes are substantially understandable on

hearing when played by the “recorder player.” In addi-

tion, each side, as each tape was played, was permitted to

comment on and describe the important parts of the tape

as played. Those comments and findings by the Court in

the crucial areas are contained in the transcript.

There is no doubt that Papp on at least two occasions

during the March 23 interrogation asked for the services

of a lawyer and on the first occasion stated point-blank that

he did not want to talk to the police any further. On

neither occasion did the interrogation cease. Counsel was

not provided. The “admission” followed the first request

for a lawyer—the map and disclosure of the location of the

body followed both requests and also followed multiple

ministrations of wine, long and repetitive interrogation,

strain, loss of composure, and breakdown.

A35

There is nothing to indicate any waiver of the right

to terminate the interrogation or a waiver of the right to

counsel except the fact that the defendant subsequently

disclosed, That is not enough. The State has simply pro-

duced nothing on which to base a waiver of the constitu-

tional rights, once asserted.

This Court does hereby

CERTIFY

that, in its opinion, no grounds based on the tapes exist

for the reconsideration of the opinion and judgment here-

tofore entered.

The intervening decision and opinion in Brewer v. Wil-

liams ........ | ee (1977) involved a number of facts

comparable to those in this case and it is believed that

generally the previous disposition by this Court is consis-

tent with the Brewer opinion. We do not believe that,

under the terms of the remand, this Court has jurisdiction

to now limit the exclusion on retrial to the items set forth

in footnote 12 on page 18 (slip opinion) in the Brewer case

(leaving for the State Court the questions whether where

the body was found and its condition might be admissible).

If this Court had jurisdiction so to do, it would.

/s/ Trmoruy S. Hoa

United States District Judge

TO THE CLERK—

Please transmit this Certification and the Transcript

of the March, 1977 hearings and an up-to-date docket sheet

to the Clerk, United States Court of Appeals for the Sixth

Circuit.

/s/ Trmorny S. Hocan

A36

APPENDIX G

ORDER OF THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

(Filed June 14, 1977)

No. 76-1402

UNITED STATES COURT OF APPEALS

For THE Srxru Cmcurr

TIMOTHY PAPP,

Petitioner-Appellee,

v.

ARNOLD R. JAGO, Superintendent,

Respondent-Appellant.

ORDER

Before: Peck, Livety and ENGEL, Circuit Judges

This is an appeal from an order of the district court

granting petitioner’s writ of habeas corpus unless petitioner

is retried within a reasonable time without the introduction

of evidence which the court found was unlawfully obtained

by means of an interrogation of the petitioner on March

23, 1973. On March 8, 1977, this court remanded the

instant case to the district court to supplement the record

with tape recordings of the interrogations of petitioner

and to certify to this court whether any grounds exist

for the district court’s reconsideration of its opinion. Pur-

suant to our order, the district court on May 6, 1977 sup-

plemented the record and certified that the tape recordings

did not alter its prior opinion that petitioner had not

A37

waived his constitutional rights during the March 23 inter-

rogation.

In his certification the district judge properly con-

cluded that in view of the limited nature of our remand,

he was without jurisdiction to amend his previous judg-

ment to conform with the intervening decision of the

United States Supreme Court in Brewer v. Williams,

U.S. — (1977), 45 U.S.L.W. 4287. He, however, noted

that had he the power to do so, he would amend the

judgment in the light of footnote 12 of Brewer v. Wil-

liams, supra, 45 U.S. L. W. at 4292-93. We agree.

Upon consideration, we affirm the determination of

the district court that the March 23 interrogation of peti-

tioner Papp violated his constitutional rights as set forth

in the opinion of the district court filed therein on February

19, 1976.

Accordingly, this cause is remanded to the district

court for modification of the judgment therein rendered

so as to grant the petitioner’s petition for application for

writ of habeas corpus unless he is retried by the state

within a reasonable time thereof without the introduction

into evidence in any future trial of statements or confes-

sions of the petitioner unconstitutionally obtained during

the March 23, 1973 interrogation, the determination of

what other evidence must also be excluded as “fruit of

the poisonous tree”, being a matter for determination in

the first instance by the state courts of Ohio.

As so modified, the judgment of the district court

is affirmed.

ENTERED BY ORDER OF THE COURT

/s/ Joh P. HEHMAN

Clerk

A38

APPENDIX H

ORDER OF THE UNITED STATES COURT OF AP-

PEALS FOR THE SIXTH CIRCUIT STAYING

MANDATE

(Filed July 11, 1977)

No. 76-1402

UNITED STATES COURT OF APPEALS

For THE Srxtu Cmcurr

TIMOTHY PAPP,

Petitioner-Appellee,

vs.

ARNOLD R. JAGO, SUPERINTENDENT,

Respondent-Appellant.

BEFORE: Peck, LIveLy and ENGEL, Circuit Judges.

ORDER STAYING MANDATE

ORDERED, That motion to stay mandate herein pend-

ing application to the Supreme Court for writ of certiorari

is hereby granted and the mandate is stayed for thirty

days from this date; provided that, if within such thirty

days, the applicant shall file with the Clerk of this Court

the certificate of the Clerk of the Supreme Court that

the certiorari petition, record, and brief have been filed,

the stay shall continue until the final disposition of the

case by the Supreme Court. Unless this condition is com-

plied with within such thirty days or any extension thereof

made by the Court or any judge thereof, or if the condition

A39

is complied with, then upon the filing of copy of an order

denying the writ applied for, the mandate shall issue.

ENTERED BY ORDER OF THE COURT.

John P. Hehman, Clerk/ by

/s/ Grace KELLER

Deputy Clerk