Petition — Ohio v. Teter

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MAR 6 1978

\

Se RODAK, JR., CLERK

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1977

No. '@79V-1329

THE STATE OF OHIO,

Petitioner,

DANIE LEE TETER,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT

OF THE STATE OF OHIO

STEPHAN M. GABALAC

Summit County Prosecuting Attorney

CARL M. LAYMAN, III

Assistant Prosecuting Attorney

Appellate: Review Division

City-County Safety Building

53 East Center Street

Akron, Ohio 44308

(216) 379-5510

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Washington OC. @ CLB PUBLISHERS’ e LAW PRINTING CO e (202) 393-0625

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TABLE OF CONTENTS

Page

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PETITION FOR WRIT OF CERTIORARI............ |

OPINION OF THE COURTS BELOW ............... 2

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CONSTITUTIONAL AND STATUTORIAL

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STATEMENT E OF Tite CARE nnn cccccccccccccccecce 4

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PETITIONER’S REASON FOR GRANTING

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APPENDIX A

JUDGMENT ENTRY OF THE TRIAL

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APPENDIX B

UNREPORTED OPINION OF THE OHIO

NINTH DISTRICT COURT OF

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APPENDIX C

ORDER FROM THE OHIO SUPREME

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TABLE OF AUTHORITIES

Cases Cited:

California v. Green, 399 U.S. 149 (1969)..........

Chapman v. California, 386 U.S. 18 (1967)...... e;

Dallas v. Commercial Union Assurance Company,

286 F.2d 388 (Sth Cir. 1961) .............04-.

Statute:

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Constitution:

Sixth Amendment to the United States

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IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1977

No.

THE STATE OF OHIO,

Petitioner,

DANIE LEE TETER,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT

_OF THE STATE OF OHIO

PETITION FOR WRIT OF CERTIORARI

Petitioner, the State of Ohio, prays that a Writ of

Certiorari issue to review the final order of the Ohio Ninth

District Court of Appeals, issued on May 2, 1977, wherein

the Court reversed the convictions of Respondent, Danie

Lee Teter. The Supreme Court of Ohio, on November 25,

1977, overruled Petitioner’s motion for leave to appeal.

2

OPINION OF THE COURTS BELOW

TRIAL COURT: No written opinion was rendered. A

copy of the judgment entry is annexed

to this Petition as Appendix A.

COURT OF A copy of the unreported opinion of

APPEALS: the Ohio Ninth District Court of

Appeals, is annexed to this Petition as

Appendix B.

OHIO SUPREME A copy of the order dismissing Peti-

COURT: tioner’s motion for leave to appeal is

annexed to this Petition as Appendix

c.

JURISDICTION

First, the Ohio Ninth District Court of Appeals

improperly found a denial of Respondent’s Sixth Amend-

ment right of cross-examination and confrontation con-

cerning the testimony of Mrs. Ray Clark.

Second, the statutory provision believed to confer

jurisdiction upon this Court to review the judgment of the

Court below is 28 U.S.C. 1257 (3).

3

CONSTITUTIONAL AND STATUTORIAL

PROVISIONS INVOLVED

Constitution of the United States

Amendment VI

In all criminal prosecutions the accused shall enjoy the

right to a speedy and public trial, by an impartial 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

confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his favor,

and to have the assistance of counsel for his defense.

United States Code

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

Final judgments or decrees rendered by the highest

court of a State in which a decision could be had, may

be reviewed by the Supreme Court as follows:

(3)By writ of certiorari, where the validity of a treaty

or statute of the United States is drawn in question

on the ground of its being repugnant to the

Constitution, treaties or laws of the United States,

or where any title, right, privilege or immunity is

specially set up or claimed under the Constitu-

tion, treaties or statutes of, or commission held or

authority exercised under, the United States.

4

QUESTION PRESENTED

Does the introduction of hearsay testimony by the

prosecution which does not fit within the parameters of any

of the common law exceptions to the hearsay rule

necessarily deny a defendant’s Sixth Amendment right to

cross-examination and confrontation?

STATEMENT OF THE CASE

The Summit County Grand Jury, during the January

term of 1976, indicted Donald E. Webb, Jr., Terry E.

Achberger, Wilford W. Hyde, Jr., Marion Franklin

Sperrow, Jr., and Danie Lee Teter for the offenses of

Aggravated Murder with three Specifications and Aggra-

vated Robbery. These indictments were the result of the

homicide of Akron Police Officer Gary Yost. Both the

Respondent and Achberger were arraigned on May 11,

1976, at which time each entered a plea of Not Guilty to

every offense charged. The trial court revoked Teter’s and

Achberger’s bonds and remanded them to the Summit

County Jail.

On May 2!, 1976, the trial court heard testimony and

oral arguments on the Respondent’s and Achberger’s

Motions to Dismiss the indictments. The basis of the

motions was the presence of a Sheriffs Department

detective in the Grand Jury room during the taking of

testimony. The detective in question was operating a

recording device at the request of the prosecution, and it

was the Petitioner’s position that Ohio Criminal Rule 6(D)

permitted his presence. The Respondent and Achberger

|

3

maintained that the rule was never intended to permit a

police officer to be present as a recording device operator

and that no prejudice need be shown for the indictments to

be dismissed. Alternatively, the Respondent and Achberger

argued that prejudice could be shown by virtue of the fact

that some witnesses may have been intimidated by the

presence of a police officer during the taking of testimony.

The trial court dismissed the indictments after finding that

Criminal Rule 6(D) and Sections 2939.11 and 2939.08

Ohio Revised Code did not permit the presence in the

Grand Jury room of this officer. }

On June 1, 1976, the Respondent and Achberger were

arraigned on the reindictments and each entered a plea of

Not Guilty. Further, co-defendants Hyde and Sperrow

were present, with counsel, at this time for a hearing on the

Petitioner’s Motion for Joinder. After hearing oral argu-

ments from counsel for all parties, the trial court took the

matter under advisement.

The Petitioner, on June 4, 1976, modified its Motion for

Joinder to exclude defendant Hyde due to a potential

Bruton problem. The trial court ordered that the Respon-

dent, Achberger, and Sperrow be tried together with the

trial of Hyde to go forward first.

On June 9, 1976, the trial court overruled the Respon-

dent’s motions for a special venire and an individual voir

dire. Further, the trial court overruled the Respondent’s

request to be present at the in camera hearing to be held

concerning the certification by the Petitioner of the names

of certain witnesses. On June 10, 1976, the trial court held

an in camera hearing concerning the certification of the

names of three prosecution witnesses, to-wit: Michael

Burns, Leonard Evans, and William Moore.

6

The Petitioner, on June 28, 1976, requested the trial

court to enter a nolle prosequi with regard to the case

against defendant Sperrow. The request was based on the

status of the evidence against Sperrow at that time.

Defendant Sperrow entered an objection to a dismissal

without prejudice. The trial court denied the ~equest for a

nolle prosequi, but did order that Sperrow be tried

separately. The Respondent and Achberger were then tried

to a jury and convicted of Aggravated Murder with two

Specifications and Aggravated Robbery.

On September 28, 1976, the trial court held a hearing,

including the taking of testimony from two witnesses, on the

Respondent’s motion for a new trial. The following day,

Achberger presented his witnesses and oral argument on his

motion for a new trial. The trial court, in a Finding and

Journal Entry dated October 4, 1976, overruled both

motions. Mitigation hearings were held and the trial court

found mitigating circumstances concerning both the Re-

spondent and Achberger. Thereafter, the Respondent and

Achberger were sentenced to life imprisonment for Aggra-

vated Murder and seven to twenty-five years for Aggra-

vated Robbery.

Marion Franklin Sperrow, Jr. and Wilford W. Hyde, Jr.

were tried and acquitted on all counts. Donald E. Webb

pled guilty to Murder and Aggravated Robbery and was

sentenced to fifteen years to life and seven to twenty-five

years.

The Ohio Ninth District Court of Appeals reversed the

Respondent’s coavictions on May 2, 1977. The Supreme

Court of Ohio overruled the Petitioner’s Motion for Leave

to Appeal this case on November 25, 1977.

7

STATEMENT OF FACTS

Christine Yost, widow of Officer Gary Yost, testified that

on August 22, 1975, at approximately 11:45 P.M., her

husband left home and proceeded directly to Shipper

Dispatch Inc. (hereinafter referred to as Shippers), which is

located at 999 Swartz Road, Akron, Ohio. Officer Yost was

employed part-time as a security guard by Shippers. On the

evening in question, Mrs. Yost testified that her husband

was wearing a blue jacket and dark slacks, both of which

were in good repair, and that he did not have an bruises on

his face or hands. Further, Mrs. Yost testified that her

husband took his service revolver, flashlight, and lunch in a

paper bag with him to work. Mrs. Yost testified that her

husband drove a ’72 red Ambassador automobile and that

he was right-handed. Finally, Mrs. Yost testified that

shortly after 7:00 A.M., on August 23, 1975, she

proceeded to Shippers in order to locate her husband who

had not returned home at his usual time. Mrs. Yost saw his

automobile in the parking lot but was unable to find Officer

Yost. One of the other employees assisted Mrs. Yost in her

search. Mrs. Yost testified that she eventually called the

Summit County Sheriff's Department and waited for their

arrival (Transcript, Volume III, Pages 38-47).

Orrin Cameron James, an assistant manager and rate

clerk at Shippers, testified that his duties involved night

supervision and operation of the terminal. James testified

that he was finishing his shift when Officer Yost arrived

between 11:30 P.M. and 12:00 A.M., on August 22, 1975.

According to James, Officer Yost appeared to be unbruised

and in good spirits and was carrying his flashlight. James

testified that it was normal procedure not to lock the trailers

8

containing tires or other merchandise which were parked in

the yard at Shippers. James testified that he left work at

approximately 12:55 A.M., but returned at 8:00 A.M., on

August 23, 1975, after he was called by the dispatcher. He

then proceeded to the northern end of the yard where he

observed the body of Officer Yost. James testified that he

saw a police officer pick up a gun that was located near the

body and place it in a plastic bag. Further, James testified

that a driver had taken a trailer from Shippers on August

23, 1975, at 5:30 A.M. (Transcript, Volume IV, Pages

370-380). =

Dale Charles Richards, a local driver for Shippers,

testified that he arrived at the terminal on August 23, 1975,

at 7:35 A.M. Shortly after his arrival, Richards testified

that Mrs. Yost approached him and asked for his help in

locating her husband. Richards then testified that he finally

found the body lying on the ground at the northern end of

the yard. He also observed a gun and a flashlight nearby.

Richards testified that State’s Exhibit No. 6 accurately

portrayed the location of several tires, one on the other side

of the fence, in relation to the body (Transcript, Volume IV,

Pages 381-386).

Douglas A. Jenney, a Coroner’s investigator, testified

that on August 23, 1975, at approximately 8:15 A.M., he

observed the body of Officer Yost lying on the ground at

Shippers near the edge of the property line. Jenney testified

that he saw a gun, flashlight, and a knife laying in the area

immediately surrounding the body. There was a partially

opened trailer containing tires nearby and several tires on

the other side of the fence from where the body was lying.

Jenney testified that the entire area was photographed

before the body and the physical evidence were disturbed.

9

Finally, Jenney testified that he removed the clothing and

’ personal effects from Officer Yost which were subsequently

turned over to the Akron Police Department (Transcript,

Volume IV, Pages 386-394).

Dr. A. H. Kyriakides, the Summit County Coroner,

testified that he performed an autopsy on the body of

Officer Yost on August 23, 1975. The external examination

revealed that there was an abrasion on the top of the right

hand overlying the first and second knuckles, three distinct

scratch marks on the left chest and upper abdomen, and a

bruise on the right cheek. Dr. Kyriakides testified that the

entrance wound was found in the back, 53 inches from the

.right heel and 2.6 centimeters to the right of the midline of

the body. It was irregular and there was fouling and

stippling present. The exit wound was located two inches

below the right nipple and toward the middle of the body.

The path of the bullet was from left to right, below upward,

and from back to front. Dr. Kyriakides testified that the

cause of death was cardio-circulatory collapse due to

internal hemorrhaging which was the result of a gunshot

wound. Further, Dr. Kyriakides testified that the distance

between the muzzle and the body was within three feet, and

that no missile was found in the body. Finally, Dr.

Kyriakides testified that death was not instantaneous but

rather occurred approximately one-half hour after the

shooting, and that the time of death was 2:00 A.M. to 2:30

A.M. (Transcript, Volume IV, Pages 204-221).

Detective Richard C. Schafer, an Akron Police Depart-

ment officer assigned to the Identification Bureau, testified

that on August 23, 1975, he and Detective William Rice

took numerous photographs of the crime scene and looked

for physical evidence at Shippers. Further, Schafer testified

10

that photographs were taken of the Empire Corporation

which is located directly north of Shippers. These

photographs depicted the location of a bullet hole in a

window of Empire and the location of the missile inside of

the building. Detective Schafer testified that State’s Exhibit

No. 39, the gun found at the scene, was registered to Officer

Yost and that the glass on the flashlight which was

recovered had been broken. Finally, Schafer testified that

no identifiable fingerprints were found on the gun, knife,

flashlight, trailers, or tires recovered from the scene

(Transcript, Volume V, Pages 426, 467).

Henry Dombrowski, a criminalist employed at the Ohio

Bureau of Identification, testified that State’s Exhibit No.

40, the missile recovered from the Empire Corporation, had

been fired from State’s Exhibit No. 39, Officer Gary Yost’s

gun. Further, Dombrowski testified that there were two cuts

in Officer Yost’s jacket that could have been made by a

knife and that there were tears in the pants worn by the

deceased (Transcript, Volume IV, Pages 395-423).

Donald Webb’s testimony began with a lengthy recital of

his past criminal and drug related activities. The essence of

this testimony was that Webb spent two years in the Boys

Industrial School, entered the Army in 1970 and began

using speed (amphetamines), and was honorably dis-

charged in 1972. Prior to his incarceration in the Mansfield

Reformatory sometime in 1972, Webb met Achberger and

supported himself and his drug habit by selling drugs and

committing burglaries. While in Mansfield, Webb met

Wilford Hyde who subsequently introduced Webb to

Marion F. Sperrow, Jr. on August 22, 1975. Webb testified

that his relationship with Achberger was one of friendship

and business, to-wit: Webb received his speed from

1]

Achberger in exchange for stolen property and stolen drugs.

Webb testified that Achberger introduced Webb to Danie

Teter on the evening of August 22, 1975.

Donald Webb testified that during the day of August 22,

1975, he contacted Dave Childs in order to set up a drug

transaction. Childs advised Webb that he did not want to

purchase any drugs but that a friend of his was interested in

the deal. Webb testified that he and Childs agreed to meet

with the buyer at Virginia Kendall Park later that day.

Webb and Childs eventually arrived at the park where they

met Wilford Hyde and Frank Sperrow. Webb testified that

when he told Hyde and Sperrow that the purchase price was

Two Thousand Dollars ($2,000) for a quantity of narcotics,

they advised Webb that they would try and have the money

later on that same night. Webb and Childs then proceeded

to Childs’ mobile home at the Ascot Trailer Park to wait for

the money.

Shortly after 10:00 P.M., on August 22, 1975, Childs

drove Webb to Hyde and Sperrow’s house at which time

Childs left. Webb testified that Hyde and Sperrow then told

him that they could not raise that much cash. Webb advised

them that they could still have the drugs if they would help

Webb steal some tires. Hyde and Sperrow agreed. Webb

testified that he telephoned Achberger chortly thereafter

and told him that he had two guys and a truck to help steal

tires. Achberger, according to Webb’s testimony, had told

Webb about the tire deal sometime in March or April of

1975. The three men then left and proceeded to Schiller

Street to pick up the drugs. Webb testified that he rode with

Sperrow in a green pickup truck and Hyde drove a blue

Vega. From Schiller, they went to Achberger’s house on

Tulip Street at approximately 11:00 P.M. to 12:00 A.M.

12

Webb left Sperrow and Hyde outside and went into the

house to speak with Achberger. Webb testified that he

found Achberger in the basement with the Respondent.

Achberger gave Webb Two Thousand Two Hundred

Doilars ($2,200) and all three men left the house. Webb

testified that ali five men had gloves and that he, Achberger,

and the Respondent had guns. The Respondent and

Achberger rode in Achberger’s blue Pontiac, Hyde drove

his Vega, and Sperrow and Webb rode in the green pickup

truck to Shippers at approximately 12:00 A.M. to 1:00

A.M. The vehicles were parked on the outside of the fence

and the mien proceeded to climb over it. Webb testified that

Achberger instructed him to open one trailer while

Achberger opened another, and that Hyde, Sperrow, and

the Respondent were checking for security guards. Ach-

berger’s trailer was empty and he approached Webb’s in

order to assist him in removing the tires. Webb testified that

he threw two or three tires out of the truck, one on the

ground and one over the fence. Achberger then instructed

Webb to find the other men to help unload the truck. Webb

testified that he walked around the other side to watch for

guards. Achberger yelled, “run” to Webb at the same time

Webb was approached by a man with a flashlight and a gun

who told him to freeze. Webb testified that he saw Hyde

and the Respondent jump the man from behind and begin to

wrestle with him. Webb ran towards the fence and as he

was climbing over it, Webb heard a gunshot. Achberger

was already on the outside of the fence. Webb testified that

he started the green pickup truck while Achberger drove

towards him in his own car. Webb then got out of the truck

and drove off with Achberger, taking the money and the

drugs with him.

ee eae

13

Webb testified that he and Achberger went back to

Achberger’s house where both men injected speed.

Approximately one hour later, Webb went to Butch

Vance’s house and went home at approximately 4:00 A.M.

or 5:00 A.M.

Webb was arrested early in 1976 on an armed robbery

charge. While in jail, Webb testified that he talked to a man

named McAnulty about the Yost homicide. In April of

1976, Webb spoke with two detectives about the case.

Webb testified that he gave several statements to the

detectives in which he lied, in part, to protect himself and

Achberger. Ultimately, Webb implicated his four co-

defendants and agreed to testify against him (Transcript,

Volume III, Pages 48-128).

Michael Burns testified the Respondent and Achberger

knew each other and dealt speed with each other. Further,

Burns testified that he worked on Achberger’s blue Pontiac

in April or May of 1975. Finally, Burns testified that in the

latter half of August, 1975, he saw the Respondent at

Corkey Bourne’s house on Dietz Avenue. At this time,

Burns testified that the Respondent told him that he

(Respondent) had just gotten back into town and that he and

Joyce Yeager had just had a baby two or three days ago.

Burns also testified that the Respondent made a telephone

call to Joyce who was still out West (Transcript, Volume V,

Pages 540-600).

John Marsh testified that sometime in August of 1975, he

was in Achberger’s basement with Bud Dennison, Gary

Shaffer, Michael Apazeller, and Achberger when he

overheard Achberger say, “We got to get him. We got to get

a pig. We got to get Yost.’”’ Marsh testified that although he

was not in the same room at time of this conversation, he

14

recognized Achberger’s voice (Transcript, Volume VI,

Pages 660-687).

Frederick Frasheur testified that in the latter part of July

1975, he stole a knife from Bobby DeLuca, the Respon-

dent’s common-law wife’s brother. The knife disappeared

between July 20 and July 25, 1975. The next time Frasheur

saw the knife was shortly thereafter, in the possession of the

Respondent. Frasheur identified State’s Exhibit Number

38 as the knife in question (Transcript, Volume VI, Pages

703-729).

Charles Edward Barna, a criminalist with the Ohio

Bureau of Criminal Identification and Investigation spe-

cializing in serology, testified that State’s Exhibit No. 63, a

brown leather jacket, had blood on it. Mr. Barna was,

however, unable to say whether the blood was human or

animal (Transcript, Volume VI, Pages 775-781). Deputy

Sheriff Thomas Pizzute testified that State’s Exhibit No.

64, a booking sheet, reflected an entry indicating that a

brown leather jacket was in the Respondent’s possession

when he was booked (Transcript, Volume VI, Pages 788-

793). Robert Heatwall and Larry Hudson testified as to the

chain of custody of the jacket. The Petitioner then rested its

case.

Achberger presented several witnesses in an attempt to

impeach the testimony of Donald Webb. Achberger’s main

defense was, however, alibi. Thomas Makinson testified

that he and his wife, Audrey, went to Achberger’s home on

August 22, 1975 at approximately 7:00 P.M. or 7:30 P.M.

and stayed the entire evening. Makinson testified that

Achberger never left his home. Audrey Makinson’s

testimony corroborated that given by her husband (Tran-

script, Volume IX, Pages 1019-1071).

15

The Respondent also presented an alibi defense. Joyce

Yeager, Respondent’s common-law wife, testified that the

Respondent was with her in West Sacramento, California on

the night of the murder (Transcript, Volume X, Pages

1244-1249). Further, Respondent presented several other

witnesses in an attempt to impeach the Petitioner’s

witnesses.

On rebuttal, the Petitioner presented the testimony of

Mrs. Ray Clark, a former neighbor of Respondent’s

common-law wife’s father, Angelo DeLuca. Mrs. Clark

testified that one or two days after August 21, 1975, Angelo

DeLuca received a phone call from his daughter who was in

California, on Mrs. Clark’s phone. Immediately after the

conclusion of the conversation, Mrs. Clark testified that

DeLuca told her that Joyce’s boyfriend had left her and

returned to Akron. Joyce Yeager, Respondent’s main alibi

witness, had denied the existence of this conversation

(Transcript, Volume XI, Pages 1534-1545).

Neither the Respondent nor Achberger testified on their

own behalf. As was previously indicated, both men were

convicted of Aggravated Murder with two Specifications

and Aggravated Robbery.

PETITIONER’S REASON FOR GRANTING

THE WRIT

The Respondent presented an alibi defense through the

testimony of Joyce Yeager, who testified that she and the

Respondent were in California at the time the crime was

committed. Further, Ms. Yeager testified that during that

time period, she never called Mrs. Ray Clark’s home in

16

order to speak with her (Yeager’s) father, Angelo DeLuca,

and advise him that Respondent had left her in California

and returned to Akron. Mr. DeLuca did not have a

telephone in his home, but he did receive calls at the home

of his neighbor, Mrs. Clark. The essence of Mrs. Clark’s

testimony was that some time after August 21, 1976, she

received a phone call from Ms. Yeager for Mr. DeLuca.

Mrs. Clark testified that after the conversation with his

daughter, DeLuca appeared upset. Mrs. Clark then asked

DeLuca how his daughter was and he replied, “Not too

good—her boyfriend ran off and left her.”” DeLuca further

explained that Ms. Yeager had advised him that Respon-

dent had returned to Akron. The Petitioner maintains that

this testimony of an unbiased, disinterested witness was

offered in an attempt to impeach Joyce Yeager. Petitioner

submits that this evidence was admissible for the limited

purpose of impeachment, irrespective of the hearsay rule.

The Ohio Ninth District Court of Appeals based its

reversal of this case upon the improper admission of Mrs.

Clark’s testimony in that the objectionable evidence did not

fit within a well recognized exception to the hearsay rule.

That Court felt that the Respondent’s confrontation right

had been infringed by the admission of this testimony. The

Petitioner, however, respectfully submits that such an

admission does not automatically result in a constitutional

deprivation. As Mr. Justice White wrote in California v.

Green, 399 U.S. 149 (1969):

The converse is equally true: merely because evidence

is admitted in violation of a long-established hearsay

rule does not lead to the automatic conclusion that

confrontation rights have been denied.

Green, supra, at page 156

17

The Petitioner maintains a statement may be admissible

even though it does not fit within a recognized exception to

the hearsay rule. Dallas v. Commercial Union Assurance

Co., 286 F.2d 388 (Sth Cir. 1961).

Alternatively, the Petitioner respectfully submits that if

any error was committed, it was harmless error beyond a

reasonable doubt. Chapman vy. California, 386 U.S. 18

(1967). The Petitioner presented the testimony of Donald

Webb, a co-defendant, who unequivocally implicated the

Respondent in the homicide. Further, the testimony of

Michael Burns and Frederick Frasheur corroborated that

given by Webb. The Petitioner maintains that the test set

forth in Chapman, supra, has been met in that there is no

reasonable possibility that the alleged improper testimony

contributed to the conviction because it was, at best,

cumulative. Therefore, the Petitioner respectfully submits

that no reversible constitutional error was committed.

18

CONCLUSION

For the reasons set forth above, it is respectfully

submitted that this Petition for a Writ of Certiorari should

be granted.

Respectfully submitted,

STEPHAN M. GABALAC

Summit County Prosecuting

Attorney

/s/ Carl M. Layman III

CARL M. LAYMAN III

Assistant Prosecuting Attorney

Appellate Review Division

City-County Safety Building

53 East Center Street

Akron, Ohio 44308

(216) 379-5510

19

CERTIFICATION

I, CARL M. LAYMAN III, Being a member of the bar

of the United States Supreme Court, do certify, pursuant to

Supreme Court Rule 33(3)(b), that a copy of the

Petitioner’s Petition for a Writ of Certiorari was mailed by

U.S. First Class mail to: DONALD S. VARIAN, JR.,

Attorney at Law, 277 South Broadway Street, Akron, Ohio

44308.

/s/ Carl M. Layman III

CARL M. LAYMAN III

Assistant Prosecuting Attorney

Appellate Review Division

la

APPENDIX A

Judgment Entry of the Trial Court

THE STATE OF OHIO COURT OF COMMON PLEAS

Summit County ss:

SEPTEMBER Term 1976

THE STATE OF OHIO No. CR 76 4 436

vs. JOURNAL

DANIE LEE TETER ENTRY

THIS DAY, to-wit: The 21st day of October A.D.,

1976, now comes the Prosecuting Attorney on behalf of the

State of Ohio, the Defendant, DANIE LEE TETER, being

in Court with counsel DONALD S. VARIAN, JR. and

JOHN CAMPBELL, for a hearing as to any mitigating

circumstances in this matter. After hearing arguments of

counsel and upon due consideration of all reports and other

evidence presented, the Court finds that there was a

mitigating circumstance present, to-wit: ““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.”

THEREUPON, the Court inquired of the said Defen-

dant if he had anything to say why judgment should not be

pronounced against him; and having nothing but what he

had already said and showing no good and sufficient cause

why judgment should not be pronounced:

2a

IT IS, THEREFORE, ORDERED AND AD-

JUDGED BY THE COURT that the said Defendant,

DANIE LEE TETER, be imprisoned and confined in the

OHIO STATE PENITENTIARY at Columbus, Ohio, for

THE REMAINDER OF HIS NATURAL LIFE for

punishment of the crime of AGGRAVATED MURDER

WITH SPECIFICATIONS, Ohio Revised Code Section

2903.01 (B), a Special Felony, and for an indeterminate

period of not less than SEVEN (7) YEARS and not more

than the maximum of TWENTY-FIVE (25) YEARS for

punishment of the crime of AGGRAVATED ROBBERY,

Ohio Revised Code Section 2911.01, a felony of the first

(1st) degree, said sentences to be served CONSECU-

TIVELY and not concurrently with each other, and that he

pay the costs of this prosecution for which execution is

hereby awarded; said monies to be paid to the Summit

County Clerk of Courts, Court House, Akron, Ohio,

44308.

THEREUPON, the Court informed the Defendant of his

right to appeal pursuant to Rule 32 (A) (2) of the Criminal

Rules of Procedure, Ohio Supreme Court.

APPROVED: ! :

October 21, 1976

cons FILED

COURT OF COMMON PLEAS

OCT 21 1976

Summir Co., Ohio

JAMES B. McCARTHY, Cletk cf Courts

JOHN W. REECE, Judge

Court of Common Pleas

Summit County, Ohio

3a

cc: Attorney Donald S. Varian, Jr.

Attorney John Campbell

Booking Desk

Adult Probation Department

Psycho-Diagnostic Clinic

Witness Assistance

Prosecuting Attorney

APPENDIX B

Unreported Opinion of the Ohio Ninth District

Court of Appeals

STATE OF OHIO )

) ss:

SUMMIT COUNTY )

STATE OF OHIO

Plaintiff- Appellee

DANIE LEE TETER

)

)

)

)

v. )

)

)

Defendant-Appellant )

}

IN THE COURT OF

APPEALS NINTH

JUDICIAL DISTRICT

(January Term, 1977)

C. A. No. 8301

APPEAL FROM JUDG-

MENT ENTERED IN

THE COURT OF COM-

MON PLEAS OF SUM-

MIT COUNTY, OHIO

CASE NO. 76 4 436

DECISION AND JOURNAL ENTRY

Dated: September 8, 1977

This cause was heard May 2, 1977, 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. We have reviewed each assignment

of error and make the following disposition:

2b

BELL, J.

On the evening of August 22, 1975, Gary Yost, regularly

employed as a Detective Sergeant in the Akron Police

Department, Narcotic Division, left his home for work as a

part-time security guard position at Shippers Dispatch Co.

This was the last occasion on which his family would see

him alive. After Mrs. Yost had requested assistance in

finding her husband, who had not returned home for work at

the usual hour, Yost’s body was discovered the next day.

The local and state law enforcement agencies immedi-

ately began an investigation of Yost’s death. This

investigation ultimately led to the questioning of Donald

Webb and, through his statements, to a number of other

defendants, including appellant Danie Lee Teter. On the

basis of these communications and further investigation, the

police and the office of the Summit County Prosecutor,

constructed a case for presentation to the grand jury. In

early 1976, that body returned indictments, charging

aggravated murder with specifications, against defendant

Teter, Wilford Hyde, Marion Sperrow, Terry Achberger

and Donald Webb.

In May of the same year, the trial court heard testimony

on defendants’ joint motion to dismiss these charges due to

irregularities in the grand jury proceedings. The trial court

granted that motion and, after further grand jury considera-

tion, new indictments for the same crime were returned

against the same defendants. On arraignment, each of the

defendants entered his plea of not guilty.

Thereafter, Hyde’s case was ordered severed for a

separate trial due to the allegation that he had made certain

inculpatory statements involving himself and other defen-

dants. Hyde was tried and found not guilty whereupon the

3b

state moved for the dismissal without prejudice of the case

against Sperrow. This motion, in the form indicated, was

denied but Sperrow’s case was also severed and he, too,

was tried separately and found not guilty. After their

motions for severance and separate trial were overruled,

Achberger and Teter were tried jointly. Each was convicted

and sentenced to life imprisonment on the aggravated

murder count and 7 to 25 years on the second charge of

aggravaied robbery. Webb was permitted to plead guilty to

murder and aggravated robbery and was sentenced

accordingly.

Motions for new trial were heard and denied and the

defendant, Teter, brings this appeal. We will refer further to

certain other facts surrounding the trial or pre-trial

proceedings as are necessary to discuss the nine individual

assignments of error.

Assignment of Error I

“The trial court erred to the prejudice of

defendant Danie Lee Teter in ordering joint

trial of defendants Teter, Achberger, and

Sperrow, and erred further in ordering sever-

ance of the case against defendant Sperrow on

the day of trial.”

We refer to Crim. R. 14 which reads:

66 tesa

“When two or more persons are jointly indicted for a

capital offense, each of such persons shall be tried

separately, unless the court orders the defendants to be

tried jointly, upon application by the prosecuting

attorney or one or more of the defendants, and for good

cause shown.”

4b

This rule is reiterative of the wording and spirit of the

previous statute, R.C. 2945.20. Good reason exists for this

and similar rules as the defendant suggests in his quotation

from Spencer v. Texas, 385 U.S. 554 (1967):

‘“##* al] joint trials *** of several defendants ***

present inherent opportunities for unfairness ***.””

Among the courts of this state, there is tacit agreement

with the thought above and, thus, precedent mandates that

if the prosecution moves for joinder, it must not only show

good cause, but also must meet the burden of proving same.

State v. Abbot, 152 Ohio St. 228 (1949); State v. Perod, 15

Ohio App. 2d 115 (1968). In State v. Fields, 29 Ohio App.

2d 154 (1971), Judge Holmes states that while the statute

is absent any true guidelines concerning the manner of

proving good cause, it may be proven in any “reasonable

manner consistent with proof of motions generally,”

including a prosecutor’s professional statement. We agree

with this postulate and his general definition of good cause

as being “necessarily *** some operative factor not present

in every case of joint indictments of defendants in capital

cases,” Fields, supra, at 158.

Within the general standards mentioned, the trial judge’s

discretion is the cardinal factor in deciding whether joint or

separate trials are held. The critical question involved in

this assignment is the trial judge’s discretion or abuse of

discretion. See, State v. Perod, supra. In People v. Sweetin,

325 Ill. 245, 156 N.E. 354 (1927) op cit. Abbott, supra, it

is stated:

‘While it is generally a matter of discretion with the

court as to whether a separate trial shall be granted,

such discretion is not arbitrary but should be so

exercised as to prevent injustice whenever possi-

ble...”

Sb

What facts or offers of proof were made to the court

relating to the state’s motion for joinder? The transcript of

proceedings (indicated below by volume and page refer-

ences in parenthesis) indicate the following reasons

advanced prior to trial.

1. All defendants were jointly indicted by the grand

jury. (I, 84).

2. The evidence will indicate that defendants acted in

concert in the homicide and associated robbery. (I,

84).

3. All of the defendants were at and left the scene

together. (I, 85).

4. Defendants acted in a course of conduct to commit

robbery and that course of conduct resulted in

eventual murder. (I, 85).

5. Joint trial would enable the jury to better evaluate

the evidence as to each defendant. (I, 85).

6. No inculpatory statements were made by any of the

defendants. (I, 86). 7

7. Webb’s statements involve all of the indicted

defendants (I, 86) and he would testify against all of

them. (I, 127).

8. Although no notice had been formally filed, each of

the defendants were inclined to adopt defenses of

alibi. (I, 88).

9. In all cases the 90 day rule was applicable, although

waivable.

Applying the reasoning of the cases previously cited, it

appears that, indeed, circumstances favoring joinder were

before the court, which circumstances (operative facts)

were not necessarily present in all joint indictments in

capital cases. We believe and hold that in view of the

prosecutor’s representations the court did not abuse its

vA)

discretion in ordering a joint trial of Teter and Achberger.

This is particularly true in view of the eventual severance

of both Hyde’s and Sperrow’s cases. We also restate

Fields, supra, and Abbott, supra, which stress: that

although separate trials must, in all cases, result in

additional time and labor as well as expense, this should not

be strongly considered as determinative in deciding the

question of joinder. We recognize Sperrow’s severance on

the day of trial was unfortunate from the standpoint of time.

But, in view of the long voir dire and the delay during the

trial itself, we believe counsel had sufficient time for

preparation of his case so as to provide appellant adequate

representation.

We reject assignment of error I.

Assignment of Error III

“The trial court prejudiciously erred by admit-

ting, over the objection of the defendant,

testimony and evidence relating to the prior

convictions of the defendant.”

Defendant complains of the prosecution’s questions,

particularly those put to his wife, concerning defendant's

past criminal history. It will be recalled that Teter did not

testify in the instant cause. Thus, his prior convictions are,

in theory, not called into issue before the jury. 15A O. Jur.

2d Criminal Practice and Procedure §234. Defendant cites

a number of examples gleaned from Vol. X of the transcript

of proceedings; instances of appellant’s prior record being

put before the jury. However, prior to this testimony being

elicited, the subject was broached by appellant himself in

his cross-examination of Michael Burns (Vol. V, 608 et

seq.).

7b

“Q. Did you know at this time that Danie [Teter] was

on probation for a misdemeanor by this court?

‘““A. I knew he was on probation, but I didn’t know

what the charges were.

“Q. Did you know he was on probation and he didn’t

report for that?

“A. Yes, I was aware that he didn’t report.

66 eaeae

“Q. Did you know there were times when he’d think

the police were coming to pick him up and he

may Stay a night in a motel and then come back

to his father-in-law’s house?

“A. No, I didn’t know what his motive was for

staying in other places.”

At a later point in the same examination, appellant

_ interrogated Burns on why Teter indicated a desire to go to

California and “start a new life,” (Vol. V, 620 et seq.):

“Q. All right. He told you he was on probation and

that was a problem to him?

“A. Uh-huh.

“Q. Is that right?

“A. Yes.”

If not by inference before this, the jury was now

introduced to a portion of appellant’s background by virtue

of his own questions. No error accrues here in favor of the

appellant where statements concerning a past criminal

involvement are elicited by his own cross-examination of

the state’s witness. State v. Lancaster, 25 Ohio St. 2d 83,

90 (1971).

As Burns subsequently testified, Teter sold him speed;

others also testified as to his engagement in the drug trade

8b

and those witnesses were cross-examined on the same

subject matter.

The portions of testimony stand in stark contrast to Joyce

Yeager’s testimony that her husband (Teter) was a

“wonderful guy” (Vol. X, 1271 et seq.). Her answer to

appellant’s counsel’s invitation to tell the jury “*** what

kind of a guy is he [the appellant] (Vol. X, 1271) opens to

the prosecution an avenue of questioning not formerly open

to cross-examination questions.

Considering the totality of the evidence elicited prior to

the questioning complained of, we find no error in the

allowance of such testimony.

We find no merit in assignment III.

Assignment of Error IV

“The trial court committed reversible error as

to its procedure and ruling concerning the

certification of prosecution witnesses.”

Crim. R. 16(B){1)(e) to which we refer in this discussion

reads in pertinent part:

“Witness names and addresses; record.

“Upon motion of the defendant, the court shall order

the prosecuting attorney to furnish to the defendant a

written list of the names and addresses of all witnesses

whom the prosecuting attorney intends to call at trial,

together with any record of prior felony convictions of

any such witness, which record is within the knowledge

of the prosecuting attorney. Names and addresses of

witnesses shall not be subject to disclosure if the

prosecuting attorney certifies to the court that to do so

may subject the witness or others to physical or

substantial economic harm or coercion. ***.”’

9b

In the instant case, the prosecution attempted to have the

aforementioned Michael Burns and others “‘certified” under

the above rule.

In setting out the procedures preliminary to such a

declaration, the trial court ordered an in camera hearing of

the type approved by this court in State v. Owens, #7491

(9th Dist. Ci. App., June 4, 1975), except that any repre-

sentations made in this matter were to be reduced to record

as suggested in Owens. This procedure which took place

without the presence of the appellant or his attorney was as

described in Vol. I, 171 et seq.

The in camera hearing was conducted and, on the basis of

the information received by the court, the trial judge

certified Burns and others. We find no abuse of discretion

by the court in so doing, considering, among other factors,

the statements made to him by the prosecutor. While the

latter’s words here do not rise to the level of a professional

statement, we have no reason to detract in any manner from

the validity of his recital of the reasons for his request for

certification as he knew those reasons to be. he record

indicates no showing of a lack of good faith on his part.

Here no reason is evidenced mandating the evidential

hearing suggested by the appellant. Nor do we agree that

defense counsel should be present.

While we are certain that the confidential nature of such

a2 hearing, if held in this case, would has been held intact

by the attorneys representing the appellant, we cannot

always be assured that if the names of the certified

witnesses were known to counsel, they would not be soon

known to the client. To set such a precedent would

inevitably defeat the cause for the rule in some isolated

instance and always pose an ethical puzzle for counsel who,

on one side, abides by the ruling of the court and, on the

LC

10b

other, strives to fully protect his client.

We reject assignment of error IV. We do not find the trial

court’s action in this regard was arbitrary and capricious.

Assignment of Error V.

“The trial court erred to the prejudice of

defendant Danie Teter by excluding the testi-

mony of Jerry Thiffault, Summit County

Probation Department, regarding statements to

him by defendant made in December, 1975.”

Before we discuss this assignment, it might be well to

clarify one question raised regarding this and other

contentions of both parties. The proposed Ohio rules of

evidence cited, and seemingly relied upon by both parties,

are the proposed rules and nothing more, until and unless

adopted by the legislature. They may serve as some guide to

the rules of evidence prior to enactment. They do not

govern the admission of evidence in this case. Nor can it be

said that the counterpart to the proposed rules, the Federal

rules, apply. They are not considered of great weight or

authority, except as they may state the Ohio rules of

evidence in existence at the time of hearing.

We agree with the ruling of the court forbidding Mr.

Thiffault’s testimony. Even outside the terms of certain

Federal or proposed (State) rules of evidence, the testimony

of the probation officer, without the testimony of the

defendant, is clearly hearsay in character and, because

declarant is the defendant, a party, such testimony is seif-

serving in nature. The state’s testimony establishes without

question that the death of Mr. Yost occurred on August 22,

1975. Teter’s statement to Thiffault is alleged to have been

made in December of that same year. While it must be

admitted that defendant’s statement, that he was absent

11b

from the state in violation of his probation order, can well

be considered as a statement against his penal interest, we

cannot test the statement and find it as being against his

interests in this cause. We cannot agree that the statement

comes within some exception allowing its introduction—not

for the purpose of proving the truth of the matter asserted—

but only as proving the statement was indeed made. As

such, it is inadmissible. State v. Lewis, 22 Ohio St. 2d 125

(1970).

We hold that the defendant’s report to Thiffault is an

extrajudicial statement offered (notwithstanding the sug-

gestion of his counsel) for the purpose of giving evidence as

to the truth of its declaration. No exceptions being

applicable, the statement is excludable hearsay evidence

and should not be admitted.

We reject assignment of error V.

i ee NB te Loge. | ate

Assignment of Error VII

“The ten day recess taken near the end of the

state’s case was an abuse of discretion by the

trial court which prejudiced the defendant.”

The transcript of proceedings (Voir dire Volumes, Vol. I,

15, 40; Vol. II, 420; and trial Vol. VI, 803, et seq.) indicate

clearly the court’s announced intention to recess the trial.

The trial judge indicated in advance of final jury selection

the dates of the recess; appellant was present but took no

exception. Near the end of the state’s case-in-chief, the

court said (Vol. VI, 803):

““*#* we'll conclude for the day and for the week.

**As I indicated to you when we first started the trial,

we'll be in recess next week. It’s a little unusual to be

recessed that long. However, we still have a — quite a

12b

ways to go on this trial, so I don’t think we’ll interfere

to any great degree.

cee >?

The jury was then admonished and released. Only at this

point, did appellant object. We find that, having been given

notice of the recess in advance and failing to object in a

timely fashion thereof, appellant waived any error.

We overrule assignment of error VII.

Assignment of Error VI

“The trial court committed reversible error by

admitting prejudicial evidence without the

proper foundation of showing of relevancy.”

During the course of trial, Donald Webb testified on

cross-examination that on the evening of August 22, 1975,

appellant wore a brown leather jacket (Vol. IV, 248).

Asked if he could identify it further in detail, Webb replied

in the negative. Later he affirmed that the only description

of Teter’s clothes he could give concerned a brown jacket,

(Vol. IV, 290), a leather coat (Vol. IV, 345).

On July 9, 1976, several days into trial, a discussion took

place between counsel and the court (Vol. VI, 646 et seq.)

concerning the testimony of certain witnesses whose names

had not been submitted to the defendant previously under

Crim. R. 16 discovery order. The court was informed that

additional witnesses were added because of the following

circumstances: when Teter was arrested in April, 1976,

some eight months after the death of Mr. Yost, he was

wearing a brown leather jacket. According to the prosecutor

(Vol. VI, 648):

<< eae

13b

““#** A test was run on the coat that the defendant was

wearing at the time [he] was arrested. That test was not

) completed until yesterday. Therefore, we didn’t

anticipate using that type of evidence. ***.”

Apparently, it was ascertained that blood was on the

) jacket at the time of the test which, according to later

) statements and testimony, was run on Julv 3, 1976. At the

| direction of the court, who proceeded with great care in

regard to this as well as other troublesome evidentiary

questions, Mr. Charles Barna of B.C.I. testified first outside

the presence of the jury (Vol. VI, 756 et seq.).

Barna received the coat from the sheriff's office on July

8. The coat checked “positive for the presence of blood” on

the left rear shoulder and collar. The right sleeve and cuff

showed “‘splattering—several spots;” other areas of stain

were also noted. As indicated, identification was made

confirming that the spots were blood; no determination was

possible as to type or as to human or animal origin. Further,

Barna testified the blood could have been on the jacket in

August, 1975.

The trial court led mm mmm

<<geaee

“Based on the testimony of Webb that there was a

brown leather jacket being worn by the defendant Teter

on the night in question, and based on the fact that that

pattern of blood spots defined by Mr. Barna there

could be an inference raised that that blood could have

come from incidents involving the crime in question.

“T’ll admit the testimony over objection of the

defendant. There are inferences that can be drawn

from it. There are possibly explanations that can be

given. I’ll admit the testimony.”

PAD De Tie

len ieaenemneaes

14b

Barna testified, subject to testimony establishing a chain

of evidence from the appellant’s locker in the county jail to

Bureau of Criminal Investigation and back, which evidence

was to be supplied by other witnesses. No witness testified

that the coat was the same coat worn by appellant in

August. Appellant’s counsel cross-examined Barna re-

garding the examination made and the findings reported.

This lengthy recital of the circumstances, surrounding the

eventual introduction of the testimony concerning the coat,

is necessary because the moment defendant chose to

interrogate Barna concerning the testing, it might be argued

that defendant waived his right to object to the exhibit and

testimony. We do not believe this line of reasoning should

be applicable here.

The reasoning of the trial court and the argument of the

prosecutor are both persuasive. But we believe each fails to

establish a sound basis for admitting the evidence in

question when one considers the objections thereto which

are:

1. No evidence appears in the record that the brown

jacket worn by the defendant at the time of his arrest

in April, 1976, was the same brown jacket as was

alleged to have been worn by him at the time of Mr.

Yost’s death in August, 1975.

We suppose one could argue that because the jackets

involved were both the same color, and possibly material,

an inference could be drawn that the jackets were indeed

one and the same.

2. No evidence appears on the record as to the

condition of the jacket marked as State’s Exhibit 44

prior to August of 1975, nor in fact is there any

evidence as to what happened to the exhibit

between April and July, 1976, other than a

tte aan

15b

statement to the effect that it had been taken from

the appellant’s locker at the county jail and brought

to the prosecutor’s office at the time the tests were

to berun at B.C.I. The booking sheet, of course,

receipts the jacket at the time of arrest. Whether the

locker was locked or secured in any way is not

known. The inference can be drawn, of course, that

the blood could have been placed on the jacket on

August 22, 1975, and not before and not after.

Other contrary inferences are equally possible.

3. No evidence appears establishing the blood in

question as being human only that that is possibly

so. To be of any value as an exhibit, the inference

must be drawn that the blood is more probably than

not, human blood. This inference, of course, may be

drawn.

Judge Mahoney of this court, speaking in State v. Moore,

47 Ohio App. 2d 181 (1973) said:

““*** The burden of establishing a chain of evidence to

identify the specimens or exhibits is upon the state.

*** However, the burden is not an absolute one.

Where there is no evidence indicating confusion with

the identity of the specimen or of the possibility of

tampering with it, then the testimony of the expert

should be admitted. ***.” (at page 183).

He continues to say:

‘“*** The practicalities of proof do not require the

state to negate all possibilities of substitution or

tampering. The state need only establish that it is

reasonably certain that substitutions, alteration or

tampering did not occur. ***.” (at page 183).

See also, City of Columbus v. Marks, 118 Ohio App.

359 (1963); State v. Myers, 82 Ohio L. Abs. 216 (1959).

Here there is no such reasonable certainty.

16b

We hold that the circumstances surrounding the receipt

and keeping of the exhibit, establish a lack of probative

evidence establishing the jacket introduced as being the

jacket worn at the scene of the homicide. The necessity of

adding consecutive inferences, one to the other, to give

viability to that evidence precludes the admission of the

jacket and evidence of the testing thereof. Further, we hold

that because of the speculative inferences which are brought

to the mind of any juror, the admission of such testimony

was erroneous and prejudicial to the defendant (as a matter

of interest we call attention to the prosecutor’s agreement

on page 1596 of Vol. XI).

Assignment of Error Il

“The trial court erred to the prejudice of the defendant

Danie Lee Teter by allowing the testimony of Mrs. Ray

Clark, as such testimony was clearly inadmissible

hearsay.”

We have not discussed this assignment in sequence,

feeling that some elements of discussion pertinent here, are

equally so in regard to our discussion of assignment of error

V. The trial court’s attention to the evidentiary question

raised here was commendable. We do not, however, agree

with his conclusions.

The evidence elicited by the prosecution on its cross-

examination of Joyce Yeager (Teter) establishes that while

in California, she called her father, Mr. DeLuca. Since the

father had no phone himself, a neighbor, Mrs. Ray Clark,

on receiving the call would go to his home, get him and he

would return with her to her home to converse with his

daughter. Ms. Yeager was asked the following questions to

which she replied in the negative:

17b

<a

“Q. Did you ever at any time telephone through Mrs.

Clark and talk to your father and tell him that

you were upset because Danie had left you

stranded in California?” (Vol. X, 1311).

She also testified that, at all times pertinent to the

homicide, Teter was with her in California. On rebuttal, the

state produced Mrs. Clark for the purpose of obtaining her

testimony concerning a particular phone call. We will

discuss the coatents thereof further in detail. Preceding her

testimony to members of the jury, however, she was

questioned outside their presence. Arguments concerning

the admissibility of her testimony were presented by the

parties after which the court allowed Mrs. Clark to testify.

The rationale of the court’s ruling is reported in Vol. XI,

beginning at page 1494.

The testimony desired by the prosecution pertained to a

conversation between Mrs. Clark and Mr. DeLuca. The

latter spoke to his daughter on the telephone and outside the

presence of Mrs. Clark. On his return to the room where

Mrs. Clark waited, he “seemed sort of upset”) (Vol. XI,

1540). When she inquired of him as to his daughter, he

replied, “‘Not too good—her boyfriend ran off and left her.”’

In answer to Mrs. Clark’s inquiry regarding the “boy-

friend’s whereabouts, DeLuca said, ‘‘He’s back in Akron,”’

(ibid, 1541). The evidence given by her would tend to

indicate that the call in question was made prior to the birth

of defendant’s child and after August 21, 1976. Mrs. Clark

had no doubt whatsoever about the identity of Ms. Yeager

as the caller.

The testimony indicated was given over the strong

objection of defendant and the co-defendant Achberger.

The court instructed the jury that he was allowing Mrs.

18b

Clark’s testimony as an exception to the hearsay evidence

rule and advised them to view such testimony with care and

caution. It sheuld be noted further, that Mr. DeLuca was

not available to testify though strenuous efforts apparently

were made to find him and secure his testimony.

The record before us indicates a long and thoughtful

statement of the trial court on his reasons for accepting the

evidence. It would not be unfair to suggest that the court’s

decision was based in part on certain Federal cases, the

application of Federal Rules of Evidence 803 and Proposed

Ohio State Criminal Rule 803. The court found that certain

exceptions to the hearsay rule were incorporated therein; he

rejected such testimony on the basis of an excited utterance

or present sense impression and we agree. The third

exception recognized by the court involved rule 803

subsection 24 which reads in part (See, Vol. XI, 1515, et

seq. ):

“that a statement not specifically covered by any of the

foregoing exceptions but having equivalent circum-

stantial guarantees of trustworthiness, if the court

determines that:

(a) the statement is offered as evidence for a material

fact.

“(b) the statement is more probative on the point for

which it is offered than any other evidence which

the proponent can procure through reasonable

efforts.

“(c) the general purposes of these rules and the

interests of justice will best be served by

admission [of it] into evidence.

(d) suggests the statement may not be admitted if the

above criteria are met unless one’s opponent is

given sufficient notice of the intended use of the

testimony so as to be prepared to meet it.

19b

We agree that the statement may properly qualify on the

first two sections of the rule set forth. We are not in

agreement that section (c) is satisfied also. In addition, we

repeat what we have previously said herein—the Federal

Rules of Evidence, except as being helpful guideposts, are

not applicable to this cause.

Ohio has long followed the strictures of the standard

hearsay rule and its varied (and not always clear)

exceptions. As was the case in a previous assignment, we

recognize that here, the statement of the claimant is one

made outside the courtroom and obviously offered for the

purpose of the truth asserted therein. It is, therefore,

hearsay. We find no exception in the hearsay rule allowing

its admission.

We feel that the cases cited, U.S. v. Barbati, 284 F.

Supp. 409 (E.D.N.Y. 1968); Wirth v. State, 197 N.W. 2d

731,55 Wis. 2d 11 (1972); and Bertang v. State, 184 N.W.

2d 867, 50 Wis. 2d 702 (1971) are distinguishable from the

instant cause.

All evidence, admitted under the guise of being an

exception to the hearsay rule, is evidence admitted because

of necessity and because of direct or circumstantial

guaranty of its truthworthiness. Judge Learned Hand in

C & G Merriman Co. v. Syndicate Pub. Co., 207 F. 515

(1913), unable to find certain testimony capable of

admission because it could not be categorized as a hearsay

exception says of that evidence:

“*** T think it fair to insist that to reject such a

statement is to refuse evidence about the truth of which

no reasonable person should have any doubt whatso-

ever because it fulfills both the requisites of an

exception to the hearsay rule, necessity and circum-

stantial guarantee of trustworthiness.” (Emphasis

added).

20b

Applying those tests here, the necessity of the hearsay

arises only as a rebuttal instrument, remembering that the

original declarant Joyce Yeager, is available and has

testified to the conversation (or lack of it).

As to the second standard, the guaranty of trustworthi-

ness, we have no question as to Mrs. Clark’s truthfulness in

relating the conversation as she best rernembers it. But is

such a guaranty existent in her repeating what Mr. DeLuca

said that his daughter told him? When he says that “her

boyfriend is in Akron’’ is DeLuca quoting his daughter, as

we infer from the testimony before us, or does he speak

from some personal observation?

If the former, how do we test her quoted assertion that

Teter (if he is indeed the boyfriend alluded to) returned to

Akron? While we search for the truth, we do so in an

adversary system. Absent examination to provide justifica-

tion to make such an attribution, we do not find the

guaranteed quality of trustworthiness sufficiently strong

under these circumstances to affirm the correctness of

allowing such testimony to be introduced into evidence.

Since the Federal Rule cited served to sustain the trial

court’s acceptance of the evidence in question, we discuss

the matter as we do and further cite Dallas Co. v.

Commercial Union Assurance Co., 286 F.2d 388 (Sth Cir.

1961) for its excellent discussion of the subject.

The phrase “‘interest of justice,” as used in Fed. R. 803

§ 24(c) is so vital, yet so vague in application. We assume it

to mean, here, interest of justice to both the state and the

defendant. While it is imperative to place before the jury all

evidence available to test the truth of the accusations made

and defenses offered, we must be sure that only proper

evidence is so admitted.

21b

We find the allowance of the evidence, subject of this

assignment, constitutes error prejudicial to the defendant.

Assignment of Error VIII

“The trial court committed prejudicial error by

admitting into evidence the agreement between

Donald Webb and the State of Ohio.”

We also agree in part with this contention of error. Again,

some outline of the facts involved are necessary. Donald

Webb is the only defendant to admit his part in the events

leading to and encompassing the death of Yost. Prior to the

taking of evidence, each of the parties, both state and

defense, made it clear to the jury that Webb had made “a

deal with the prosecution.” As heretofore indicated, in

return for his testimony, Webb was allowed to enter a plea

of guilty to a lesser crime. Certain other terms surrounding

this arrangement were brought out in the testimony. We

have no argument with this type of testimony. During the

course of his testimony, he was asked to identify state’s

exhibit one and did so, indicating it to be the written

agreement he entered into with the state. He was then asked

(Vol. III, 121, et seq.):

*¢ teak

“Q. Does it indicate on there who signed that

agreement?

“A. Yes.

“Q. Did you sign that agreement?

“A. Yes.

“Q. Who else signed that agreement?

““A. My lawyers, the detectives and the Judge and the

prosecutors.

“Soe ”

22b

Further evidence as to the promises made by the

prosecutor to Webb was given throughout the subsequent

examination and cross-examination. No further mention

was made of any involvement by the court in these ne-

gotiations. The prosecution, however, then offered exhibit |

into evidence (Vol. VII, 827 et seq.). Both defendants,

including Teter, objected but the letter was accepted.

The letter itself, dated June 2, 1976, forms a portion of this

file and is not repeated verbatim here because of its length.

This letter is written on the stationery of the prosecuting

attorney. It alludes to Webb’s confession of involvement and

states that two police agencies have investigated the matter

and determined, as fact, that Webb did not shoot Yost. It

further speaks of the possible physical danger to Webb

because of his testimony against the other defendants.

Paragraph 7 thereof reads:

7.) The aforementioned disposition of Mr. Webb’s

case has been fully communicated to Judge John

W. Reece and Judge Reece has indicated that he

will accept said recommendations.”

The agreement was signed by the prosecuting attorney, the

attorneys for Webb, Webb hiinself, and agents of both the

Akron police department and the Summit County Sheriff's

office.

It is, of course, the duty of the finders of fact, (here the jury)

to determine the issue of the credibility of witnesses who

testify. 15 A. O. Jur. 2d Criminal Practice and Procedure

§ 443; State v. May, 40 Ohio App. 2d 342, 345 (1975);

Atkins v. State, 115 Ohio St. 542,545 (1927). The members

of that jury are instructed, as they were in the instant case,

what they may consider in determining the matter of

credibility. But here the introduction of the exhibit (as

23b

opposed to verbal testimony) tends to establish the view that

two police agencies have investigated the case and confirm

(1) Webb’s reliability as a witness; (b) that Webb did not

fire the fatal shots; and (c) by inference that those who

testify contrary to his testimony are not reliable or truthful.

The letter then goes to the extent of involving the court’s

stamp of approval on the arrangement, a statement which

might be easily understood by any juror as surely implying

the court’s own assessment of Webb’s testimony as being the

same as the police (and prosecution) view thereof.

Of course, the police view may well be entirely correct and

the letter even casually read does not make any inference that

the trial judge assesses the testimony of Webb in any manner

whatsoever. The difficulty we experience here is overlooking

the not too subtle fact that the letter seems to say more than it

does in actuality, though the approval of the police agencies

of Webb’s testimony is more than subtly said. No cross-

examination of that view is permissible when only the letter is

admitted after the close of all the evidence. The reasons

existing for ascribing validity to Webb’s story as a result of

the investigations conducted are not known except for the

evidence placed before the jury during trial.

We find that the submission of the letter mentioned tends

to invade the jury’s province of being the sole determiners of

the credibility of the witness Webb.

In spite of what has been said above, we are not convinced

that prejudice has been demonstrated. Both parties were

aware of tne contents of the letter. The defense was allowed

full inquiry requisite to a development, both of the character

of the witness as well as his giving information to law

enforcement agencies, indeed, to speak of certain areas of

investigation made by those agencies. Repetitive and

24b

reaching questions were asked concerning his agreement to

the terms thereof. Thus, while the content of the letter tends

to invade the province of the jury, it, taken with all of the

other testimony, cannot be said to be clearly prejudicial in

that respect.

While we believe it is error to have admitted the exhibit in

question, we do not agree that this admission constituted

error prejudicial to the rights of the defendant.

We reject assignment of error VIII.

Assignment of Error IX

“The trial court committed prejudicial error by

not granting defendant’s motion for new trial.”

In light of our foregoing discussion, it is unnecessary to

discuss this assignment.

Since we have sustained assignments of error II and VI, we

reverse the judgment and remand the matter for a new trial.

The court finds that there were reasonable grounds for this

appeal.

We order that a special mandate, directing the Court of

Common Pleas to carry this judgment into execution, shall

issue out of this court. A certified copy of this journal entry

shall constitute the mandate, pursuant to App. R. 27.

Immediately upon the filing 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. App. R. 22(E).

25b

Costs taxed to appellee.

Exceptions.

/s/ Edward J. Mahoney

Presiding Judge

- for the Court -

VICTOR, J. CONCURS.

MAHONEY, P.J. CONCURS

IN THE JUDGMENT ONLY.

APPEARANCES:

STEPHAN M. GABALAC, Summit County Prosecutor

(Carl M. Layman III, Asst. Prosecutor), City-County

Safety Building, Akron, Ohio 44308 for Plaintiff-Appellee.

DONALD S. VARIAN, Attorney at Law, 277 South

Broadway, Akron, Ohio 44308: for Defendant-Appellant.

le

APPENDIX C

Order from the Ohio Supreme Court

THE SUPREME COURT OF THE STATE OF OHIO

THE STATE OF OHIO, 1977 TERM

City of Columbus. To wit: November 25, 1977

State of Ohio,

Appellant, No. 77-1185

MOTION FOR LEAVE

VS. TO APPEAL FROM THE

COURT OF APPEALS

Danie Lee Teter, for SUMMIT County

Appellee.

It is ordered by the Court that this motion is overruled.

COSTS:

Motion Fee, $20.00, paid by Stephen M. Gabalac

I, Thomas L. Startzman, Clerk of the Supreme Court of

Ohio, certify that the foregoing eniry was correctly copied

from the Journal of this Court.

Witness my hand and the seal of the Court

this day of 19

Clerk

Deputy