Petition — Weind v. Ohio

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Supreme Court, U.S ~

FILED

IN THE , NOV 25 1977

SUPREME COURT OF THE UNITED STATES MICHAEL RODAK, JR., CLERK

October Term, 1977

No. A-290

77-5787

JAMES KENNETH WEIND, Petitioner

STATE OF OHIO, Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF OHIO

JAMES KURA

Franklin County Public Defender

400 South Front Street

Columbus, Ohio 43215

Phone: (614) 224-0570

and

GREGORY L. AYERS

400 South Front Street

Columbus, Ohio 43215

Phone: (614) 224-0570

Counsel for Petitioner

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GSU NOD PURSUE occ ceccccecececccceesesconsesseuveesseceeees

CONSTITUTIONAL AND STATUTORY PROVISIONS, AND RULES OR PROCEDURE

PE 6 64:0 b6 6-65 bb 666d 0656S cekins Kekeheunateeateenecdeédekédedss

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Be THIS COURT SHOULD GRANT CERTIORARI TO CONSIDER

THE CONSTITUTIONAL VALIDITY OF PETITIONER'S DEATH

GP 04s. ddd dee honde ccdndudacunbeneeeecesmnake

A. The Ohio Death Penalty Statutes, as Written,

Construed, and as Applied to Petitioner, Un-

constitutionally Limit the Proper Considera-

tion of All Relevant Mitigating Circumstances.

B. The Ohio Death Penalty Statutes Denied Peti-

tioner his Right to a Judgment of his Peers

in Determining the Existence of Mitigating

Circumstances in Violation of the Sixth,

Eighth, and Fourteenth Amendments............

S. Ohio's Capital Sentencing Procedures Uncon-

Stitutionally Shift to Defendants the Burden

of Proving the Existence of Mitigating Factors

by a Preponderence of the Evidence...........

D. Ohio Capital Sentencing Procedures Unconstitu-

tionally Penalize the Capitally Accused Who

Exercise their Rights to a Jury Trial........

E. The Unlimited Opportunities for the Injection

of, and Excessive Use of Discretion by the

Prosecuting Attorney Renders the Ohio Statute

PAGE NO.

iii

Violative of the Principles of Furman v. Georgia,

GED U.S, TED Else de ve cccccctenseessetineses<s

rs The Death Penalty in Ohio is in Fact Imposed With-

out Adequate Safeguards Designed to Insure that

Like Sentences are Imposed in Like Cases.......

Il. THIS COURT SHOULD GRANT CERTIORARI TO CONSIDER WHETHER

THE TRIAL COURT'S DENIAL OF PETITIONER'S REQUEST FOR A

CONTINUANCE DEPRIVED PETITIONER OF HIS FIFTH, SIXTH,

AND FOURTEENTH AMENDMENT RIGHTS TO THE EFFECTIVE ASSIST-

ANCE OF COUNSEL AND DUE PROCESS OF LAW.............+45-

Ill. THIS COURT SHOULD GRANT CERTIORARI TO CONSIDER WHETHER

THE TRIAL COURT'S ACTION IN ALLOWING, OVER OBJECTION,

THE ADMISSION OF HEARSAY EVIDENCE CONCERNING A TAPE

RECORDING OF A CONVERSATION BETWEEN TWO KEY STATE WIT-

NESSES, AND THEN FAILING TO INSTRUCT THE JURY TO DIS-

REGARD THIS TESTIMONY AFTER REFUSING TO ADMIT THE TAPE

INTO EVIDENCE, VIOLATED PETITIONER'S FIFTH, SIXTH, AND

FOURTEENTH AMENDMENT RIGHTS TO A FAIR TRIAL AND DUE

PRED GF Eivcccccccccccucsscseccestesesboscoecesses

Index (Continued)

APPENDIX:

A. Entry Granting Extension of Time for Filing Petition for

GOP Fb 060bys 00s 0sbb dices 6bsdbbéreksébenvessaeesesswte

B Decision of Ohio Supreme Court............ccceccccccuce iets

C. Decision of the Ohio Supreme Court on Rehearing............

D. Decision of the Franklin County Court of Appeals...........

a Transcript from State of Ohio v. Nennis Carl Burke..........

PAGE NO.

TABLE OF AUTHORITIES

Cases

PAGE_NO.

Ashton v. Kentucky, 384 U.S. 195 (1966).........seeeeeeeeenees 13

Atkinson v. North Carolina, 403 U.S. 948 (1971)..........+e6-- 20

Beasley v. United States, 491 F. 2d 627 (6th Cir. 1974)....... 24

Crampton v. Ohio, 402 U.S. 183, 195 n. 7 (1971)....-0. eee eees 21

Funicello v. New Jersey, 403 U.S. 948 (1971).......eeeeeeeeees 20

Coles v. Peyton, 389 F. 2d 224 (4th Cir. | SP eereperrrrr er. 24

Furman v. Georgia, 408 U.S. 238 (1972).......eeeeeeeeeeeeeeeees 10,20,21

Gregg v. Georgia, U.S. 49 L. Ed. 2d 859 (1976)........ 21

In Re Winship, 397 U.S. 358 (1970)....... eee eee eee ce eee eeeeees 18

McGautha v. California, 402 U.S. 183 (1971).......--eeeeeeeees 17

Mullaney v. Wilbur, 421 U.S. 684 (1975).......eeeeeeeeeeeeeeee 18

Proffitt v. Florida, U.S. 49 L. Ed. 2d 913 (1976).... 22

Rainsburger v. Fogliane, 380 F. 2d 783, 785 (C.A. 9, 1967) 20

Roberts v. Louisiana, U.S. 49 L. Ed. 2d 974 (1976)..... 10,17

Stans v. Gagliardi, 485 F. 2d 1290 (2nd Cir. |) eee 26

State v. Bayless, 48 Ohio St. 2d 73 (1976).......eeeeeeeeeeeees 12,13,15,19

State v. Bell, 48 Ohio St. 2d 270 (1976).........eeeeeeeeeees : 13,15

State v. Black, 48 Ohio St. 2d 262 (1976)........eee eee eeeeeees 12,13

State v. Clift, 19 Ohio St. 2d 31, 249 N.E. 2d 823 (1969)....... 21,22

State v. Edwards, 49 Ohio St. 2d 31 (1976).......seeeeeeeeeeeeee 21

State v. Hancock, 75AP-151 (1975 Decisions, p. 2273).......++++- 17

State v. Harris, 48 Ohio St. 2d 351 (1976)....... cece e cece eeees 13

State v. Lockett, 49 Ohio St. 2d 48 (1976).........ceeeeeeeeeees 13

State v. Royster, 48 Ohio St. 2d 381 (1976).......eeeeeeeeeeeeee 13

State v. Weind, 50 Ohio St. 2d 226-7 (1976).......seeeeeeeeeeees aeteaaaal

State v. Woods, 48 Ohio St. 2d 127 (1976)....... see eeeeeeeeeees 14,22

Williams v. New York, 337 U.S. 241 (1949)........ceeeeeeeeeeeees 17

Woodson v. North Carolina, U.S. QOL. Ed. 26 DAG, . cccces 19,15,17

Ungar v. Sarafite, 376 U.S. 574 (1964).......ceeeeeeeeeeeeeeeees 25

U.S. v. DeVall, 462 F. 2d 137 (C.A. 5, 1972)..... cece eeeecnees 17,18

U.S. Kramer, 289 F. 2d 909 (C.A. 1961)....... cece e eee eneeeeeeees 17

Table of Authorities

Continued

Cases

United States v. Bernett, 495 F. 2d 943 ...... cece eeeeeeces

United States v. Collins, 435 F. 2d 698 (7th Cir. 1971).....

United States v. Frattine, 501 F. 2d 1234 (2nd Cir. 1974)...

United States v. Jackson, 390 U.S. 570 (1968)...........+00--

United States v. Rojas, 537 F. 2d 216 (Sth Cir. 1976)........

United States v. Roundtree, 527 F. 2d 16 (8th C ir. 1975)....

United States v. Wells, 431 F. 2d (6th Cir. 1970)...........-.

PAGE NO.

Table of Authorities

Continued

Section

Statutes

2929.02, Ohio Revised Code......

2929.03, Ohio Revised Code......

2929.03(C), Ohio Revised Code...

2929.04, Ohio Revised Code......

2929.04(B), Ohio Revised Code...

2929.04(B)(2), Ohio Revised Code

2929.04(B)(3), Ohio Revised Code

PAGE NO.

10,17,19

10,13,14,18

10,11,16

10,14,16

10,12,16

Table of Authorities

Continued

Constitutional Provisions

PAGE NO.

Fifth Amendment, United States Constitution................. 23,26

Sixth Amendment, United States Constitution................. 23,26

Eighth Amendment, United States Constitution................ 12,23

Fourteenth Amendment, United States Constitution............ 12,23,24,26

Table of Authorities

Continued

Rules

PAGE NO.

Rule 11(C)(4), Ohio Rules of Criminal Procedure.............. 19

Rule 14, Ohio Rules of Criminal Procedure.............scceeece 23

Rule 52(B), Ohio Rules of Criminal Procedure.............-ee- 27

Table of Authorities

Continued

Miscellaneous

PAGE NO.

Section 201.6, Model Penal Code 20

ceeeepeeveeeeeeeeeeeeeeeeeeeeeeeeee

viii

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1977

No. A-290

JAMES K. WEIND, Petitioner

Vv.

STATE OF OHIO, Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF OHIO

The Petitioner, James K. Weind, respectfully prays that a writ of

certiorari issue to review the judgment and opinion of the Ohio Supreme

Court entered in this proceeding on June 22, 1977.

OPINION BELOW

The opinion rendered by the Ohio Supreme Court is officially reported

at 50 Ohio St. 2d 224 (1977). The opinion of the Franklin County Court of

Appeals was not officially reported, but does appear in the Court's publica-

tion of 1976 Decisions at page 2555. Copies of both opinions are included in

the appendix.

JURISDICTION

The judgment of the Ohio Supreme Court was delivered and entered on

June 22, 1977. On September 27, 1977, Mr. Justice Stewart entered an order

extending the time for filing of this petition until and including November 25,

1977. This Court's jurisdiction is invoked pursuant to 28 U.S.C. Section 1257(3).

QUESTIONS PRESENTED

1. Whether Ohio's statutory procedure for imposing the death penalty,

particularly as it was applied to Petitioner, violates the Eighth and Fourteenth

Amendments to the United States Constitution.

2. Whether Petitioner was denied his Fifth, Sixth, and Fourteenth

Amendment rights to the effective assistance of counsel, a fair trial, and

due process of law when the Trial Court overruled Petitioner's pre-trial

motion for a continuance.

3. Whether Petitioner was denied his Fifth, Sixth, and Fourteenth

Amendment rights to a fair trial and due process of law when the Trial Court

failed to instruct the jury to disregard all testimony concerning an alleged

tape recording of a conversation between the two key State witnesses after the

Court had allowed considerable hearsay testimony concerning the tape but later

ruled it inadmissible as evidence.

CONSTITUTIONAL AND STATUTORY PROVISIONS,

AND RULES OF PPUCEDURE INVOLVED

1. This case involves the Fifth, Sixth, Eighth and Fourteenth Amend-

ments to the Constitution of the United States.

2. This case also involves the following provisions of the Ohio law:

Ohio Revised Code Section 2903.01.

Aggravated murder.

(A) No person shall purposely, and with prior

calculation and design, cause the death of another.

(B) No person shall purposely cause the death

of another while committing or attempting to com-

mit, or while fleeing immediately after committing

or attempting to commit kidnapping, rape, aggravated

arson or arson, aggravated robbery or robbery, aggra-

vated burglary or burglary, or escape.

aggravated murder, and shall be punished as provided

in section 2929.02 of the Revised Code. (Page's Ohio

Revised Code, p. 15).

Ohio Revised Code Section 2929.02.

Penalties for murder.

(A) Whoever is convicted of aggravated murder in

violation of section 2903.01 of the Revised Code

shall suffer death or be imprisoned for life, as de-

termined pursuant to sections 2929.03 and 2929.04 of

the Revised Code. In addition, the offender may be

fined an amount fixed by the court, but not more than

twenty-five thousand dollars.

(B) Whoever is convicted of or pleads guilty to

murder in violation of section 2903.02 of the Revised

Code shall be imprisoned for an indefinite term of

fifteen years to life. In addition, the offender may

be fined an amount fixed by the court, but not more

than fifteen thousand dollars.

tion to imprisonment or death for aggravated mur-

der, or in addition to imprisonment for murder, unless

the offense was committed with purpose to establish,

maintain, or facilitate an activity of, a criminal

syndicate as defined in section 2923.04 of the Re-

vised Code, or was committed for hire or for purpose

of gain.

(D) The court shall not impose a fine or fines

for aggravated murder or murder which, in the ag-

gregate and to the extent not suspended by the

court, exceeds the amount which the offender is or

will be able to pay by the method and within the

time allowed without undue hardship to himself or

his dependents, or will prevent him from making

reparation for the victim's wrongful death. (Page's

Ohio Revised Code, p. 152).

Ohio Revised Code Section 2929.03.

Imposing sentence for a capital offense.

(A) If the indictment or count in the indict-

ment charging aggravated murder contains no speci-

fication of an aggravating circumstance listed in

division (A) of section 2929.04 of the Revised

Code, then, following a verdict of guilty of the

charge, the trial court shall impose sentence of

life imprisonment on the offender.

(B) If the indictment or count in the indict-

ment charging aggravated murder contains one or

more specifications of aggravating circumstances

listed in division (A) of section 2929.04 of the

Revised Code, the verdict shall separately state

whether the accused is found guiltyor not guilty

of the principal charge and, if guilty of the prin-

cipal charge, whether the offender is guilty or not

guilty of each specification. The jury shall be in-

structed on its duties in this regard, which shall in-

clude an instruction that a specification must be

proved beyond a reasonable doubt in order to support

a guilty verdict on such specification, but such in-

struction shall not mention the penalty which may be

the consequence of a guilty or not guilty verdict on

any charge or specification.

charging aggravated murder contains one or more speci-

fications of aggravating circumstances listed in divi-

sion (A) of section 2929.04 of the Revised Code, then,

following a verdict of guilty of the charge but not

guilty of each of the specifications, the trial court

shall impose sentence of life imprisonment on the ~

offender. If the indictment contains one or more

specifications listed in division (A) of such section,

then, following a verdict of guilty of both the charge

and one or more of the specifications, the penalty to

be imposed on the offender shall be determined:

(1) By the panel of three judges which tried the

offender upon his waiver of the right to trial by jury;

(2) By the trial judge, if the offender was tried

by jury.

(D) When death may be imposed as a penalty for

aggravated murder, the court shall require a pre-sentence

investigation and a psychiatric examination to be made,

and reports submitted to the court, pursuant to section

2947.06 of the Revised Code. Copies of the reports shall

be furnished to the prosecutor and to the offender or his

counsel. The court shall hear testimony and other evi-

dence, the state, if any, offender, and the arguments, if

any, of counsel for the defense and prosecution, relevant

to the penalty which should be imposed on the offender.

If the offender chooses to make a statement, he is subject

to cross-examination only if he consents to make such state-

ment under oath or affirmation.

(E) Upon consideration of the reports, testimony, other

evidence, statement of the offender, and arguments of coun-

sel submitted to the court pursuant to division (D) of this

section, if the court finds, or if the panel of three judges

unanimously finds that none of the mitigating circumstances

listed in division (B) of section 2929.04 of the Revised

Code is established by a preponderance of the evidence, it

shall impose sentence of death on the offender. Otherwise,

it shall impose sentence of life imprisonment on the offen-

der. (Page's Ohio Revised Code, p. 153).

Ohio Revised Code Section 2929.04.

Criteria for imposing death or imprisonment for a

capital offense.

(A) Imposition of the death penalty for aggra-

vated murder is precluded, unless one or more of the

following is specified in the indictment or count in

the indictment pursuant to section 2941.14 of the Re-

vised Code, and is proved beyond a reasonable doubt:

(1) The offense was the assassination of the

president of the United States or person in line of

succession to the presidency, or of the governor or

lieutenant governor of this state, or the president-

elect or vice president-elect of the United States,

or of the governor-elect or lieutenant governor-elect

of this state, or of a candidate for any of the fore-

going offices. For purposes of this division, a per-

son is a candidate if he has been nominated for elec-

tion according to law, or if he has filed a petition

or petitions according to law to have his name placed

on the ballot in a primary or general election, or if

he campaigns as a write-in candidate in a primary or

general election.

(2) The offense was committed for hire.

(3) The offense was committed for the purpose of

escaping detection, apprehension, trial, or punish-

ment for another offense committed by the offender.

(4) The offense was committed while the offender

was a prisoner in a detention facility as defined in

section 2921.01 of the Revised Code.

(5) The offender has previously been convicted of

an offense of which the gist was the purposeful killing

of or attempt to kill another, committed prior to the

offense at bar, or the offense at bar was part of a

course of conduct involving the purposeful killing of

or attempt to kill two or more persons by the offender.

(6) The victim of the offense was a law enforcement

officer whom the offender knew to be such, and either

the victim was engaged in his duties at the time of the

offense, or it was the offender's specific purpose to kill

a law enforcement officer.

(7) The offense was committed while the offender was

committing, attempting to commit, or fleeing immediately

after committing or attempting to commit kidnapping, rape,

aggravated arson, aggravated robbery, or aggravated burg-

lary.

(B) Regardless of whether one or more of the aggravated

circumstances listed in division (A) of this section is

specified in the indictment and proved beyond a reasonable

doubt, the death penalty for aggravated murder is precluded

when, considering the nature and circumstances of the of-

fense and the history, character, and condition of the of-

fender, one or more of the following is established by a

preponderence (preponderance) of the evidence:

(1) The victim of the offense induced or facilitated it.

(2) It is unlikely that the offense would have been com-

mitted, but for the fact that the offender was under duress,

coercion, or strong provocation.

(3) The offense was primarily the product of the of-

fender's psychosis or mental deficiency, though such con-

dition is insufficient to establish the defense of insanity.

(Page's Ohio Revised Code, p. 154).

Ohio Rules of Criminal Procedure, Rule 11(C)(4).

(4) With respect to aggravated murder committed on and

after January 1, 1974, the defendant shall plead separately

to the charge and to each specification, if any. A plea of

guilty or no contest to the charge waives the defendant's

right to a jury trial, and before accepting such plea the

court shall so advise the defendant and determine that he

understands the consequences of such plea.

If the indictment contains no specification, and a plea

of guilty or no contest to the charge is accepted, the court

shall impose the sentence provided by law.

If the indictment contains one or more specifi-

cations, and a plea of guilty or no contest to the

charge is accepted, the court may dismiss the speci-

fications and impose sentence accordingly, in the

interests of justice.

If the indictment contains one or more specifi-

cations which are not dismissed upon acceptance of

a plea of guilty or no contest to the charge, or if

pleas of guilty or no contest to both the charge and

one or more specifications are accepted, a court com-

posed of three judges shall: (a) determine whether the

offense was aggravated murder or a lesser offense; and

(b) if the offense is determined to have been a lesser

offense, impose sentence accordingly; or (c) if the

offense is determined to have been aggravated murder,

proceed as provided by law to determine the presence

or absence of the specified aggravating circumstances

and of mitigating circumstances, and impose sentence

accordingly.

STATEMENT OF THE CASE

On the morning of December 15, 1974, the body of Hermalee Ross was

found in an abandoned schoolhouse in Delaware County, Ohio. Evidence pro-

duced at trial indicated that a conspiracy existed among a group of persons

to murder the victim. The Petitioner, James K. Weind, was indicted on

December 23, 1974, for kidnapping, aggravated murder with death penalty speci-

fications, and aggravated murder while committing kidnapping with death pen-

alty specifications.

Defense counsel was appointed on January 7, 1975. Defense counsel filed

a request for discovery on January 7, 1975, pursuant to Criminal Rule 14, Ohio

Rules of Criminal Procedure. The case was set for trial on February 18, 1975.

After waiting the appropriate number of days, defense counsel on January 28,

1975, filed a motion with the Trial Court, as discovery had still not been pro-

vided. Along with the motion for discovery, counsel requested a continuance,

alleging that the failure co provide discovery had "seriously hampered the

ability of counsel to adequately counsel and represent the Defendant."

memorandum in support of his motion included the following language:

; It is felt that such efforts are presently in-

sufficient to guarantee to the defendant his right

of effective assistance of counsel.

. Counsel for the defendant has spoken to Mr.

James O'Grady, Chief Trial Counsel for the Prosecut-

ing Attorney, and was informed that Mr. O'Grady had

no objections to a continuance of trial of this de-

fendant until completion of the trials of other

parties allegedly involved in the instant offense.

Counsel for the defendant further asserts that

additional time is necessary for the completion of

research of legal issues presented by the present

case, and, necessarily research will be affected by

the nature of the material as yet to be received from

the Prosecuting Attorney.

Counsel's

When the requested discovery was finally provided on February 4, 1975,

it left defense counsel a mere fourteen days in which to interview nearly

sixty witnesses and to otherwise prepare for trial. Faced with this unwork-

able situation, defense counsel, on February 5, 1975, filed a supplemental

memorandum with the Court in which he argued the necessity for a continuance.

Counsel's memorandum concluded:

Insufficient time remains available to counsel

to render effective assistance to their client

at a trial scheduled to commence February 18,

1975.

The Trial Court did not grant a continuance. As a result, counsel was unable

to interview some witnesses, including Robert Boswell] and Michael Goins, key

witnesses for the State, prior to trial. Boswell was an important witness

for the State of Ohio at trial, yet defense counsel was unable to determine

his address or whereabouts before trial began. Petitioner objected to Boswell's

testimony at trial on the grounds that he was not provided with proper dis-

covery, i.e., a new address for Boswell] which the prosecution had 19 days be-

fore trial, but never provided to defense counsel, but was overruled. (Tr.

231). Petitioner also objected to the testimony of Stephen Molnar, Jr., Chief

Firearms Examiner for the Ohio State Bureau of Criminal Investigation, concern-

ing firearms comparison tests conducted just two days before the trial began be-

cause he was not provided with the results thereof prior to trial. (Tr. 156).

This objection was also overruled.

In the Ohio Supreme Court, Petitioner argued that the Trial Court's

denial of his request for a continuance constituted an abuse of discretion by

the Trial Court, and denied him the guarantee of counsel provided by the Four-

teenth Amendment to the United States Constitution. In overruling Petitioner's

contention the Ohio Supreme Court held:

In reviewing the record, this court finds that the

defense ably tried the case. Since no prejudice

appears to have been caused by the failure to grant

a continuance, appellant's eighth proposition of

law is without merit. State v. Weind, 50 Ohio St.

2d at 234 (1977).

The totality of the State's evidence showed that the victim was abducted

from the parking lot of a food store in the early morning hours of December 15,

by at least two persons, that she was taken to a rural area in an adjacent

county, and that she was shot to death in an abandoned schoolhouse.

The major evidence against Petitioner was supplied by Robert Boswell

who lived in the same apartment building as Petitioner. (Tr. 242, 243).

Boswell testified that on the day of the crime, Petitioner came to his apart-

ment and gave him a box containing a weapon. (Tr. 244, 246). Petitioner re-

turned to the apartment later in the day and allegedly told Boswell that he

and one Carl Osborne abducted the victim, took her to the country, and that

Osborne then murdered her. (Tr. 251). Two other witnesses, Debbie Zweydorff

and Kay Osborne testified that Petitioner was in the company of Carl Osborne

on the evening of December 14, and the early morning hours of the next day.

(Tr. 380, 383).

Police recovered what was believed to be the murder weapon from Alum

Creek, the place where Petitioner allegedly told Boswell they had hidden it.

(Tr. 190, 257).

The prosecution repeatedly attempted to introduce a tape recording, made

by Detective Ron Price, of a conversation between Boswell and Michael Goins

which allegedly included evidence against Petitioner. (Tr. 222, 223, 229, 230,

239, 264, 269). Defense counsel repeatedly objected to any testimony concerning

the existence or contents of the tape. (Tr. 216, 220, 222). Over objection, the

Court allowed repeated reference to the tape by witnesses Price and Boswell,

allowed parts to be played before the jury, and allowed some testimony concern-

ing the substance of the tape. After considerable testimony concerning the

tape, it was ruled inadmissible by the Trial Court on the grounds that it was

extremely inflammatory. (Tr. 329). Other than the statements of Boswell and

Goins, the State offered no other evidence concerning Petitioner's participa-

tion in the commission of the murder.

Counsel for Defendant did not request the Trial Court to instruct the

jury to disregard the testimony concerning the tape. In the Ohio Supreme Court,

Petitioner assigned as error the Trial Court's failure to instruct the jury to

disregard all testimony regarding either the existence of or contents of the

tape recording after it sustained the defense's objections to the admissibility

of the tape. The Ohio Supreme Court ruled that:

In the instant cause, failure of the trial judge

to give the jury specific instructions regarding the

tapes did not constitute an error that affected the

defendant's ‘substantial rights' under Crim. R. 52(B),

since mention of the tapes by the judge would have

called the jury's attention to them to the prejudice

of the defendant.

Since appellant failed to timely object to

the jury instructions, and since plain error

was not involved, appellant's twelfth proposi-

tion of law is rejected. State v. Weind, supra,

at 237.

The Petitioner, having filed a timely Notice of Alibi, presented a

number of witnesses whose testimony suggested that he was not involved in

the offense. (Tr. 437, 440, 450, 461). Petitioner was found guilty of all

counts.

Subsequent to trial a mitigation hearing was held for the purpose of

determining whether one of Ohio's three statutory mitigating circumstances was

present. Dr. Jack Morganstern, a psychiatrist, testified that he had examined

Petitioner and concluded that it was unlikely that the offense would have been

committed but for the fact Petitioner was under duress, coercion, or strong

provocation since such behavior would be atypical given Petitioner's stable

family structure, close family contact, and non-violent background. (Tr. 3, 4,

5, 6). Dr. Jaime Smith e Incas, a psychiatrist, testified that Petitioner was

suffering from a psychosis at the time of the offeise. (Tr. 10).

A second mitigation hearing was held three months later, at which time

Dr. Smith e Incas testified that he could not testify to a reasonable medical

certainty that Petitioner was psychotic at the time of the offense because he

felt it was impossible to extrapolate in that fashion from the information

which he possessed. (Tr. 55, 56). At the conclusion of the mitigation hearing

defense counsel argued that Petitioner was suffering from a psychosis at the

time of the offense. (Tr. 61).

The Court found that no statutory mitigating circumstances had been estab-

lished by a preponderance and sentenced the . etitioner to death. (Tr. 62, 63).

In the Ohio Supreme Court, Petitioner argued that the Trial Court clearly

abused its discretion in holding that mitigating circumstances were not shown

by a preponderance of the evidence during the mitigation hearing. Affirming

the findings of the Trial Court, the Supreme Court held:

In this cause, the only evidence to support the

theory that the defendant suffered a psychosis at

the time of the offense was Dr. Smith e Incas'

opinion that since the defendant had a non-violent

behavior background, he possibly could have suffered

an acute but short-lived psychotic break. The pos-

sibility of a condition is not enough to support a

finding of the existence of a mitigating circumstance.

Having reviewed the psychiatric reports and the evi-

dence adduced at the mitigation hearing, this court

finds no abuse of discretion of the trial court in

finding that the offense was not primarily the product

of Weind's psychosis or mental deficiency.

Appellant's sixth proposition of law is

overruled. State v. Weind, supra at 232,

233.

And,

Although this evidence suggests that the

defendant may have acted under a strong domin-

ation or persuasion, it is outweighed by other

evidence, such as his relationship to his co-

conspirators, his motive committing the crime,

and his,participation in the planning and cover-

up of the crime, which suggests that his acts

were voluntary.

The court affirms the trial court's determina-

tion that the defendant was not under duress, coer-

cion, or strong provocation. State v. Weind, supra

at 231.

In the Ohio Supreme Court, Petitioner's proposition of law that the Ohio

death penalty statutes place unconstitutional limitations upon the consideration

of mitigating circumstances was summarily overruled. State v. Weind, supra at

225.

Petitioner's proposition of law that the Ohio death penalty statutes

are unconstitutional in that they deny the capitally accused the right to a

judgment of his peers as to the existence of mitigating circumstances, and the

appropriateness of the penalty of death was overruled by the Ohio Supreme Court.

State v. Weind, supra at 226.

Petitioner's argument in the Ohio Supreme Court that the statutory sen-

tencing procedure following a conviction for a capital offense is unconstitu-

tional and denies the accused due process and equal protection of the law be-

cause the burden is placed upon the accused to establish a reason why he should

not be put to death was not answered by the Court since it found that the Trial

Court did not place such burden on Petitioner. State v. Weind, supra at 226.

The Ohio Supreme Court also overruled Petitioner's contention that the

statutory sentencing procedure following a conviction for a capital offense

is unconstitutional and denies the defendant equal protection and due process

of law because the defendant who pleads not guilty to a capital offense and is

found guilty, is treated differently than the defendant who pleads guilty or

no contest to the same offense and whose plea is accepted. State v. Weind,

supra at 228, 229.

Finally, the Ohio Supreme Court summarily rejected Petitioner's proposi-

tion of law that the statutory sentencing procedure following a conviction for

a capital offense is unconstitutional and denies a defendant equal protection

and due process of law because it places a greater risk of death on a defendant

who asserts his right to a trial by jury. State v. Weind, supra at 229.

REASONS FOR GRANTING THE WRIT

s THIS COURT SHOULD GRANT CERTIORARI TO CONSIDER THE

CONSTITUTIONAL VALIDITY OF PETITIONER'S DEATH SEN-

TENCE.

A. The Ohio Death Penalty Statutes, as Written, Construed, and as Applied

to Petitioner, Unconstitutionally Limit the Proper Consideration of All

Relevant Mitigating Circumstances.

It has been recognized that "(i)ndividual culpability is not always mea-

sured by the category of the crime committed." Furman v. Georgia, 408 U.S. 238

(1972) at 402 (Burger, C.J., dissenting). This principle was butressed by the

decisions of this Court in Roberts v. Louisiana, U.S. 49 L. Ed. 2d 974

(1976) and Woodson v. North Carolina, U.S. 49 L. Ed. 2d 944, which in-

dicated that mandatory death penalty statutes did not allow for sufficient con-

sideration of a defendant or his crime to comport with tine basic principles of

Furman v. Georgia, 408 U.S. 238 (1972). Petitioner contends that the Ohio sta-

tutes, Ohio Revised Code Sections 2929.02-.04, are both improperly restrictive

and patently unclear, thus rendering them unconstitutional. Moreover, Petitioner

alleges that he was directly affected by the unconstitutionality of the statutes,

and was therefore sentenced to death in contravention of the Eighth and Fourteenth

Amendments.

In particular, Petitioner argues that the State of Ohio has adopted and

applied a framework for the finding of mitigating factors which will preclude

the application of the death sentence in a manner which disregards the mandate

of this Court. Section 2929.04(B), Ohio Revised Code states that the death pen-

alty will be precluded when one of the following is proved by a preponderance of

the evidence:

(B)(1) The victim of the offense induced or facil-

itated it.

(2) It is unlikely that the offense would have been

committed, but for the fact that the offender was

under duress, coercion, or strong provocation.

(3) The offense was primarily the product of the

offender's psychosis or mental deficiency, though

such condition is insufficient to establish the de-

fense of insanity.

Two of these mitigating factors were involved in the instant case, coun-

sel for Petitioner having argued at the mitigation hearing both that Petitioner

was suffering from psychosis and that he acted under duress, coercion, or provo-

cation. Further, Petitioner alleges that the Trial Court unconstitutional ly

failed to consider such relevant factors as age, character, and background,

including Petitioner's lack of a prior criminal record.

Petitioner's mitigation hearing began on April 14, 1975. The first

witness, Dr. Morganstern testified that it was unlikely that the offense

would have been committed were it not for the fact that Petitioner was under

duress, provocation, or coercion. (Tr. 4, 9). He further testified:

Well, the question as I understood it, Mr.

Romanoff, was that assuming that the act took

place and Mr. Weind did it, would it be likely

that he without special duress, strong provo-

cation, or some very special circumstances

would have committed that and I said, no, it

would be unlikely for the . . Mr. Weind norn-

ally to do that. (Tr. 9).

In short, Dr. Morganstern testified that he had determined that the

mitigating circumstances described in 0.R.C. Section 2929.04(B)(2) was in evi-

dence on the facts of the instant case.

The second psychiatrist to testify, Dr. Smith e Incas, testified that in

his opinion the offense would not have been committed but for the fact of Peti-

tioner's psychosis. (Tr. 18). Two months later, Dr. Smith e Incas was recalled

and repeated his testimony that Petitioner was suffering from temporary psy-

chosis at the time of the offense. After being pressed by the prosecution as

to the degree of medical certainty of his opinion, the following transpired

upon examination by defense counsel:

Q. In other words, you weren't there. You can't real-

ly say what happened with any certainty. Is that

correct?

A. Exactly. I can only piece together the behavioral

pattern and take into consideration one's prior

pattern of behavior, the circumstances of what oc-

curred.

Q. 0.K. And I sense on your part, Dr.. if someone

asks you to extrapolate to a point in time when

you weren't present. Is that correct?

A. Yes.

Q. 0.K. That's a normal medical hesitancy?

A. Normal, it's just judicious and honest approach to

the situation.

Q. All right. Are you saying then that it would basic-

ally be impossible for any Doctor to extrapolate

that behavior from what has been provided?

A. I think so.

(Tr. 55, 56).

Thus, the defense presented two psychiatrists, each of whom testi-

fied to the existence of a separate mitigating circumstance recognized by

the Ohio statute. Though Dr. Smith e Incas refused to declare that he was

certain that Petitioner was psychotic at the time of the offense, he did

testify that he arrived at the strongest conclusion possible where a doctor

has not had the opportunity to examine Petitioner prior to or at the precise

time of the offense. Thus, Petitioner maintains that the defense offered

substantial proof of the existence of two mitigating circumstances. Be-

cause the Trial Court refused to find the existence of either mitigating cir-

cumstance, and because this judgment was affirmed by the Court of Appeals and

Ohio Supreme Court, it must be concluded that the Ohio statute was applied in

such a way as to deprive Petitioner of his Eighth and Fourteenth Amendments

rights.

Prior decisions by the Ohio Supreme Court interpreting its death pen-

alty statute have made it abundantly clear that the statutes have been inter-

preted so as to render them unconstitutional due to a strict narrowing of the

mitigating factors. For example, under 0.R.C. Section 2929.04(B)(3), the death

penalty is precluded if:

(t)he offense was primarily the product of the

offender's psychosis or mental deficiency though

such condition is insufficient to establish the

defense of insanity.

Nowhere in the Code is “mental deficiency" defined. However, in the initial

case decided by the Ohio Supreme Court under the Ohio statute, it was held that

the term meant only a “low or defective state of intelligency." State v.

Bayless, 48 Ohio St. 2d 73 (1976) at 96. Thus, no consideration of any other

of a broad range of mental problems was possible. Perhaps realizing that this

narrow interpretation of “mental deficiency" rendered that statute constitu-

tionally suspect, the Court, at the next opportunity, expanded the definition

to:

allow... the broadest possible latitude in the

examination of the defendant's mental state and

mental capacity for purpose of the mitigation

inquiry, excepting only legal insanity. (Empha-

sis added.) State v. track, 48 Ohio St. 2d 262

(1976) at 268.

The Court noted that a restrictive interpretation of the term serves only to

“bind the conscience of the Trial Court" to the defendant's detriment, and that

"any mental state or incapacity may be considered." State v. Black, supra at

268.

Although the more expansive definition as promulgated in Black seems

desirable, it is abundantly clear that the Black definition was totally ig-

nored by the Ohio Court in subsequent cases. In State v. Bell, 48 Ohio St.

2d 270 (1976), decided the same day as Black, the Court affirmed the sen-

tence of an appellate who was 16 years of age, involved with drugs, a slow

learner, and with poor family and education lives; and despite an assertion

(apparently cosmetic) that age was to be a “primary factor" in determining men-

tal deficiency. State v. Bell, supra, at 282 which statement directly

contradicted an earlier observation that age had no bearing on any mitigating

factor. State v. Bayless, supra, at 87n.

The Court next declined to apply its more liberal Black definition of

"mental deficiency" in State v. Harris, 48 Ohio St. 2d 351 (1976), where a 17

year old sociopath was summarily held to be well within the bounds of mental

sufficiency; in State v. Royster, 48 Ohio St. 2d 381 (1976), where a low in-

telligence appellant had his death sentence affirmed despite a contention of

mental deficiency; and in State v. Lockett, 49 Ohio St. 2d 48 (1976) where

another drug involved appellant with a low I.Q. had her contention of mental

deficiency dismissed, and death was imposed on the defendant who was in a car

two blocks away at the time of the shooting. In fact, not a single death sen-

tence has been set aside by the Ohio Supreme Court for this or any other rea-

son. These cases, as well as the instant case, demonstrate that the expanded

definition of "mental deficiency" in Black, supra, is a mere platitude. Peti-

tioner was placed in an uncertain position: he could not adequately prepare

to meet the burden of proof placed upon him by 0.R.C. Section 2929.04 to show

the existence of a mitigating circumstance since he could not know precisely

what he must show. A statute must, in order to comport with due process, be

sufficiently definite that it is subject to ready and certain application.

Ashton v. Kentucky, 384 U.S. 195 (1966). Petitioner appeared and presented

a convincing demonstration at the mitigation hearing that he was suffering at

the time of the offense from psychosis short of that required to prove legal

insanity. The manner in which this section of the statute has been construed

in this and other cases demonstrates that this mitigating factor is largely

illusory in practical effect.

An even more persuasive showing was made at the mitigation hearing that

the offense would not have been committed but for duress, coercion, or provoca-

cation, which is the mitigating circumstance codified in 0.R.C. Section 2929.04

(B)(2). Yet the Ohio Supreme Court has failed to find this circumstance in any

case. In State v. Woods, 48 Ohio St. 2d 127 (1976), the Court refused to find

coercion despite psychiatric evidence that defendant was “easily dominated and

controlled." In the instant case, the psychiatric testimony was similarly di-

rect. Dr. Morganstern testified that in his opinion it was unlikely that the

offense would have been committed but for the fact of duress and provocation,

since such behavior would be atypical given Weind's stable family structure,

close family contact, and non violent background. Other evidence produced at

trial revealed a complex plot whereby Petitioner and another were directed to

perform the murder. It was established that Petitioner was easily led and highly

susceptible to influence and domination. The failure to find mitigation on these

facts is persuasive of the argument that the Ohio Supreme Court has unconstitu-

tionally narrowed the mitigating circumstance of coercion, domination, or provo-

cation. Yet the Ohio Supreme Court failed to find this factor in an equally

alarming situation, in State v. Woods, 48 Ohio St. 2d 127 (1976). There, des-

pite the uncontroverted expert testimony showing Woods to be easily “dominated

and controlled", and that he would not have committed the crime but for the co-

defendant's domination, 48 Ohio St. 2d at 134; the fact that Woods' accomplice

was a career criminal, older, and the instigating force in the crime; and re-

luctance of Woods to complete the crime, the Court affirmed Woods’ sentence,

thus demonstrating its own reluctance to find mitigating factors when they do

exist. Granted that in applying this mitigating factor the proverbial line

must be drawn somewhere short of the existence of an actual defense to the

crime, Woods seems to leave no space for such a line to be drawn. In effect,

then, Section 2929.04 lists a wholly illusory factor, "mitigating" in title only

of little or no practical value.

Next, Petitioner argues that the Ohio death penalty statute is unconsti-

tutional as applied to him for the reason that the Ohio Supreme Court allowed

the Trial Court to find no mitigation in a haphazard manner without adequate

care for Petitioner's rights. Petitioner argues that the Trial Court abused

its discretion in failing to order further psychiatric examination of him for

the purposes of the mitigation inquiry.

Assuming arguendo that the mitigation hearing failed to clearly demon-

strate that one of the mitigating circumstances was present, there is no doubt

that there was at least considerable doubt on the question. This was acknow-

ledged by the Ohio Supreme Court, when it announced:

The possibility of a condition is not enough

to support a finding of the existence of a

mitigating circumstance. Weind, supra, p. 233.

Inasmuch as there was at least considerable doubt as to whether Petitioner was

psychotic at the time of the offense, the Court should have granted Petitioner's

motion for re-examination. The failure to grant the motion evidences a lack

of concern for Petitioner's rights and a careless, haphazard application of the

Statute. This approach flies in the face of prevailing law announced by this

Court as to the importance of a careful, closely scrutinized inquiry into the

question of mitigation.

Finally, Petitioner argues that the Ohio system for finding mitigating

circumstances is wholly inadequate for the reason that it precludes any effective

inquiry into such necessary factors as the age, character, background, and prior

record of the defendant, as mandated by Woodson, supra, at p. 961.

The Ohio Supreme Court has pointed out that Ohio's statute does not pro-

vide for consideration of the defendant's age, prior criminal record, a broad

range of mental impairments, and defendant's actual conduct which may involve

him substantively only through principles of complicity. State v. Bayless, supra,

at 87n. These deficiencies in the scheme fall directly within the ambit of the

quoted language from Woodson in the previous paragraph.

As discussed earlier, the Ohio Supreme Court attempted to salvage the

Statute in State v. Bell, supra, by holding that age is a factor; but even ig-

noring the obvious contradictions on this issue between Bell and Bayless, it is

clear that age can be a factor only as it pertains to determining mental defi-

ciency. (And as also previously discussed, mental deficiency is an extremely

shadowy concept. )

The Ohio provision also fails in light of the requirements of Woodson,

quoted supra, in that it makes no allowances for a defendant's character or prior

record. Although it is pointed out in State v. Bell, supra, at 281, that the

preamble to the list of mitigating circumstances that those circumstances are

to be considered in light of "the history, character, and condition of the of-

fender," if examined in conjunction with the mitigating factors, such an instruc-

tion at best is superflous and at worst is an attempt to camoflage the true lack

of breadth of the statute. How can one consider a defendant's character and

record as it relates to the inducement or facilitation of the offense by a

victim? Or as it relates to whether the offense was a product of mental

deficiency? The defendant's character, record, etc., are exclusive factors,

not modifying ones; they must be, if used, considered as separate elements,

not as parts of others. The very structure of Section 2929.04(B) logically

preclude such use.

Consequently it becomes apparent that the list of mitigating circum-

stances in subsection (B)(1), (B)(2), and (B)(3) are the only ones which real-

istically may be considered under the statute.

Petitioner here argues that this argument applies with special force to

the facts of the instant case. Clearly, were such factors to be made part of

the mitigation decision in Ohio, Petitioner would not be a likely prospect for

the death penalty. The language of the Ohio Supreme Court in affirming his

conviction and death sentence demonstrates this conclusion. The Court, while

maintaining that Petitioner's proof fell short of establishing a statutory

mitigating circumstance, acknowledged that the available evidence showed that

Petitioner's character and background were highly inconsistent with the offense.

The Court acknowledged that:

It was the doctor's conclusion that it would have

been unlikely for Weind to have committed the of-

fense without '*** special duress, strong provoca-

tion, or some very special circumstances,’ since

such behavior would be atypical given Weind's stable

family structure, close family contact, and non-vio-

lent background. (p. 230).

Later, the Court observed:

... The doctors agreed that the defendant's involve-

ment in the crime was highly unusual... he was easily

led because he felt a need to belong and that he was

non-violent in nature. (p. 231).

Despite the Court's findings that Petitioner's behavior was atypical, unusual,

and inconsistent with his character and background, the Court was forced to

affirm the death sentence simply because it felt no statutory mitigating factor

had been proven.

The scope of Ohio's mitigating factors is so limited that Ohio has, in

practical effect, mandatory death penalties for seven types of aggravated mur-

der. The provisions of Section 2929.04(B) can be applied so seldom that the

Ohio provision is quite similar to the Louisiana statute nullified in

Roberts v. Louisiana, supra. That statute provided for a mandatory death

penalty for defendants convicted of five categories of homicide. Lou. St.

Ann. - R.S. 14:30(1) through (5). The Ohio framework likewise resembles

the North Carolina statute (North Car. Gen. Stats. Section 14-17) struck

down in Woodson v. North Carolina, supra, in that death penalties for cer-

tain acts are automatic notwithstanding the existence of mitigating factors

in the crime. Indeed, Ohio's Tenth District Court of Appeals, in affirming

a defendant's death sentence, characterized the Ohio scheme as a mandatory

death penalty:

Judge Strausbaugh, in the opinion of... (State v.

Harris, No. 75AP-195 (1975 Decisions, page 2075)

. succinctly wrote: ‘Accordingly, the new Ohio

law provides for a mandatory death penalty in cer-

tain cases of murder dependent upon the factual

determinations made. The death penalty, being

mandatory, rather than discretionary, is not pre-

cluded by Furman.’ State v. Hancock, 75AP-151

(1975 Decisions, p. 2273).

In light of the numerous constitutional objections to the Ohio death

penalty statutes, and because of Petitioner's particularized demonstration of

prejudice resulting from the manner in which the statutes are written and inter-

preted, he urges this Court to grant certiorari.

B. The Ohio Death Penalty Statutes Denied Petitioner his Right to a

Judgment of his Peers in Determining the Existence of Mitigating Cir-

cumstances in Violation of the Sixth, Eighth, and Fourteenth Amendments.

In our criminal courts the jury sits as the repre-

sentative of the community; it's voice is that of

the society against which the crime was committed.

Williams v. New York, 337 U.S. 241 (1949) at 253

(Murphy, J., dissenting).

Ohio Revised Code Section 2929.03(C) precludes jury participation in the sen-

tencing process: the function of the jury terminates with a determination of

guilt or innocence of the offense and the aggravating specifications. Thus,

the voice of the aggrieved society is omitted in sentencing contrary to his-

toric precedent as set forth in McGautha v. California, 402 U.S. 183 (1971)

at 200.

Further, the existence or absence of mitigating factors is, beyond any

argument, a question of fact, on which a defendant has a Sixth Amendment right

to jury determination. U.S. v. Kramer, 289 F. 2d 909 (C.A. 1961); U.S. v.

DeVall, 462 F. 2d 137 (C.A. 5 1972). The jury is called upon to determine

the factual issues relating to the existence of aggrevation; fundamental

fairness would seem to require that that same body make the factual determin-

ations relating to mitigation as well.

6. Ohio's Capital Sentencing Procedures Unconstitutionally Shift to

Defendants the Burden of Proving the Existence of Mitigating Factors

by a Preponderence of the Evidence.

This Court held in Mullaney v. Wilbur, 421 U.S. 684 (1975), that, to

satisfy due process requirements, the State must bear the burden of proving

every element of a crime. Ohio Revised Code Section 2929.04 places the burden

on a defendant to save his life by affirmatively proving mitigation. This:

fails to recognize that the criminal law... is

concerned not only with guilt or innocence in

the abstract but also with the degree of criminal

pre: Mullaney v. Wilbur, supra, at 698-

699.

This degree of culpability is precisely what should be of primary importance

in a mitigation inquiry. Ohio draws distinctions between aggravated murders

where the defendant is convicted of the substantive offense and no mitigating

factors are found; and thosewhere the defendant is convicted of the substantive

offense and mitigation is found to exist. The death penalty is imposed only

in the former situation; only in this situation, however, is the State relieved

of its burden to prove its case beyond a reasonable doubt. Petitioner contends

that this arrangement unconstitutional ly shifts the burden of proof in violation

of Mullaney v. Wilbur, supra, and In Re Winship, 397 U.S. 358 (1970). Indeed,

if the State seeks to take someone's life it should unquestionably bear the

burden of demonstrating the necessity and legitimacy for doing so.

Petitioner raised this argument at his mitigation hearing when counsel

inquired into whether he had the burden of proving a mitigating factor. The

Ohio Supreme Court responded to Petitioner's contention in the following man-

ner:

The Court does not reach this issue since the record

reveals that such burden was not placed on the ac-

cused. In fact, the trial judge, in response to a

question by the defense concerning who had the burden

of proof at the mitigation hearing. stated that ‘In-

asmuch as there is no burden, I will suggest that the

State go first.' State v. Weind, 50 Ohio St. 2d,

226-7.

Petitioner contends that the Supreme Court's assertion of there being

no burden of proof on either side is inconsistent with its affirmation of the

finding of no mitigating circumstance. In light of the persuasive evidence

adduced at the mitigation hearing by the two psychiatrist quoted above, the

Court must necessarily have placed a heavy burden upon Petitioner in order

to arrive at a finding that no mitigation was present. In fact, to hold that

there is no burden necessarily places the burden upon defendant since it is

his life that is at stake. At any rate, the Ohio Supreme Court's holdings in

this and other capital cases make clear that much is demanded from the de-

fendant in terms of proof. As the Court applied an unconstitutional burden

of proof, his sentence of death must be reversed.

D. Ohio Capital Sentencing Procedures Unconstitutionally Penalize the Cap-

itally Accused Who Exercise their Rights to a Jury Trial.

Under Ohio law, if a defendant pleads not quilty to an indictment charg-

ing aggravated murder with a specification of aggravating circumstances, "(t)he

trier of fact may be either a jury or, if waived, a three-judge panel; ... If

the defendant is found guilty of the charge and guilty of one or more of the

specifications, a separate hearing is held before the trial judge (in a jury-

tried case) or the three-judge panel (in a jury-waived case) to determine whether |

mitigating circumstances exist which preclude imposition of the death penalty... |

The death penalty is to be imposed if the trial judge or the three-judge panel

unanimously finds that none of the three possible mitigating factors has been

established to exist by a preponderance of the evidence." State v. Bayless,

supra, 48 Ohio St. 2d at 81-83. Petitioner further points out that

the only outlet from the death penalty for a capital defendant convicted of

aggravated murder upon a plea of not guilty is either (1) a failure of the

jury (or three-judge panel) to find factually the existence of a statutory

aggravating circumstance, or (2) the finding by the Court (or three-judge panel)

of one or more of Ohio's three extremely narrow mitigating circumstances. If

any aggravating circumstances and no mitigating circumstances is found, the

death penalty must be imposed. Ohio Revised Code Ann. Section 2929.03(C),(E)

(Page 1975).

On the other hand, if Petitioner pleads guilty, the Court would have “an

alternative." It would not be restricted by Ohio's rigid aggravated-mitigating

circumstances scheme, but could impose a life sentence for any reason that it

thought fitting, “in the interest of justice." Ohio Rule Crim. Pro. 11(C)(4)

provides in relevant part:

If the indictment contains one or more specifi-

cations, and a plea of guilty or no contest to the

charge is accepted, the court may dismiss the

specifications (of ree tite t circumstances )

and impose sentence

accordingly.

of life imprisonment)

Moreover, had Petitioner elected to waive trial by jury of the issue of guilt

or innocence, he could have been sentenced to death only if a "panel of three

judges unanimously (found)... that none of the (statutory) mitigating circum-

stances... is established by a preponderance of the evicence." Ohio Revised

Code Ann. Section 2929.03(E) (Page 1975). The benefit of trial of the miti-

gating-circumstances issue by a multi-judge panel which cannot impose a death

sentence in the absence of unanimity is obviously considerable:

A multi-judge court offers an opportunity for dis-

agreement wholly lacking in a single judge. With

such an issue as the death penalty involved, the

possibility and availability of disagreement are

advantages that cannot be disregarded. The fact

that a single judge may be reluctant to assume the

awesome solitary choice between life and death can-

not weight in the balance. Judges are presumed to

rem the fortitude to carry out their responsibil-

ties.

Rainsburger v. Fogliane, 380 F. 2d 783, 785 (C. A. 9 1967).

In United States v. Jackson, 390 U.S. 570 (1968), this Court held that

the rights to plead not guilty and to have a jury trial are unconstitutional ly

diminished when separate and more lenient sentencing standards are established

for cases in which these rights are waived. See also Funicello v. New Jersey,

403 U.S. 948 (1971) (per curiam); Atkinson v. North Carolina, 403 U.S. 948

(1971) (per curiam). Such a scheme "needlessly encourages" the waiver of the

rights to have one's guilt determined by a trial and by a jury. United States

v. Jackson, supra, 390 U.S. at 583. Ohio's statutes and rules of Court govern-

ing the trial of capital cases provide a similarly needless and effective en-

couragement of waiver of federal Fifth and Sixth Amendment rights; and their

constitutionality under Jackson therefore plainly warrants review on certiorari.

E. The Unlimited Opportunities for the Injection of, and Excessive Use of

Discretion by the Prosecuting Attorney Renders the Ohio Statute Viola-

tive of the Principles of Furman v: Georgia, 408 U.S. 238 (1972).

The twelve States, including Ohio, which re-enacted capital punishment

laws after Furman v. Georgia, supra, based on the aggravating/mitigating factor's

scheme of Model Penal Code Section 201.6 (Proposed Offical Draft, 1962) obviously

did so to avoid the problems presented by allowance of unbridled discretion in

the sentencing authority and condemned in Furman. Notwithstanding the substantive

merits of the statutes, however, the discretion vested in, and exercised by, the

office of the prosecutor remains unchecked. As but one example of the actual

exercise of such discretion, see Appendix E setting forth facts which show

discretion in one of its most dangerous forms: after an appellate reversal

of his capital murder conviction, a brother was offered a dismissal of a

death sentence of his sister, already affirmed by the Ohio Supreme Court, in

return for his guilty plea to non-capital murder.

The points at which prosecutorial discretion can be manife.+:d in the

capital offense criminal process are limitless: the example cited here repre-

sents only one such possibility. The injection of such discretion into the

process of deciding who may live and who must die is more than Eighth and Four-

teenth Amendments can tolerate.

P. The Death Penalty in Ohio is in Fact Imposed Without Adequate Safeguards

Designed to Insure that Like Sentences are Imposed in Like Cases.

Plenary review of death sentences by a State's highest Court -- the only

Court with statewide jurisdiction -- is an important procedural safeguard against

the arbitrary and capricious imposition of the death penalty, Gregg v. Georgia,

U.S. 49 L.Ed. 2d at 829, 832 for it helps to insure not only that the death penalty is ap-

propriate when measured by the facts of a particular case, but that it is pro-

portionate to sentences imposed in similar cases. Although death sentence cases

are reviewable as a matter of right in Ohio's Appellate Courts, including the

Ohio Supreme Court, it was generally believed in the pre-Furman era that no Ohio

reviewing Court had the authority to set aside a death sentence as excessive or

inappropriate. See McGautha v. California, and Crampton v. Ohio, 402 U.S. 183,

195, n. 7 (1971). However, in State v. Bayless, supra, at 86, the Ohio Supreme

Court stated that it would “independently review the aggravating and mitigating

circumstances presented by the facts of each case to assure ourselves that capital

sentences are fairly imposed by Ohio's trial judges." That the Court has not kept

its promise with fidelity to Eighth Amendment values is strongly suggested by a

brief review of the Ohio cases.

In State v. Edwards, 49 Ohio St. 2d at 47, the Court,citing a pre-Furman capital

case, State v. Cliff, 19 Ohio St. 2d 31, 249 N.E. 2d 823 (1969), explicitly stated

that:

In criminal appeals this court will not retry issues

of fact (relating to mitigation). In the circum-

stances at hand, we confine our consideration to a

determination of whether there is sufficient substan-

tial evidence to support the verdict rendered.

The “substantial evidence" test in Ohio, however, as State v. Cliff, supra,

makes clear, is an inordinately narrow test, for the verdict of sentence

will be sustained under it unless no reasonable mind could reach the same

conclusion. Whatever the merits of the "substantial evidence" test as a

device for appellate review in non-capital cases, it surely does not suffice

in capital cases to insure that the death penalty is appropriate when measured

by the facts of a particular case, especially when the burden of proving miti-

gation is on the defendant. In stark contrast to Ohio's procedure is the

Florida procedure sustained in Proffitt v. Florida, U.S. 49 L. Ed. at

923, “under which the evidence of the aggravating and mitigating circumstances

is reviewed and reweighed by the Supreme Court of Florida". (Emphasis added. )

In none of the twenty-five cases in which the Ohio Supreme Court has

sustained the death sentence has it even attempted to compare the case with

any other case in which the death sentence was imposed or with any case in

which the death sentence was averted.

In several cases, as indicated earlier, the Ohio Supreme Court has pur-

ported to interpret various mitigating factors broadly for the benefit of the

defendant. These expansive readings could hardly have been anticipated by the

trial judges who imposed the death sentence, and it is likely that they used

narrower standards in holding that mitigation had not been proved. Despite this,

the Ohio Supreme Court has not remanded a single case for a new sentencing hear-

ing to be conducted pursuant to the newly articulated standards. Rather, in every

case, the Court has simply reviewed the record as made, without even inquiring

whether the standards used by the sentencer were compatible with the standards

thereafter announced.

The Ohio Supreme Court, in the case of Woods, supra, while complaining

that it had not received the pre-sentence report, proceeded to review the rec-

ord without it, and affirmed the death sentence. Likewise in the instant case,

the Court made no mention of the propriety of the penalty imposed upon Petitioner

either comparitively or as specially applied in the mitigation hearing.

In Proffitt v. Florida, supra, at 923, this Court observed that the

Florida Supreme Court had set aside the death sentence in eight of twenty-one

cases, thus evidencing scrupulous appellate review. The Ohio Supreme Court has

reviewed twenty-six death sentence cases. It has set aside the conviction and

sentence in one for evidentiary error unrelated to the penalty. In each of the

twenty-five remaining cases, however, it has affirmed the death sentence.

Whether Ohio's system of appellate review is adequate to comply with

Eighth Amendment standards is a substantial constitutional question which

should be resolved by this Court.

Il. THIS COURT SHOULD GRANT CERTIORARI TO CONSIDER WHETHER

THE TRIAL COUxT'S DENIAL OF PETITIONER'S REQUEST FOR A

CONTINUANCE DEPRIVED PETITIONER OF HIS FIFTH, SIXTH,

AND FOURTEENTH AMENDMENT RIGHTS TO THE EFFECTIVE ASSIST-

ANCE OF COUNSEL AND DUE PROCESS OF LAW.

Petitioner argues that he was denied his Fifth, Sixth and Fourteenth

Amendment rights to the effective assistance of counsel and due process of law

when the Trial Court refused to grant defense counsel's motions for a continu-

ance. The offense for which Petitioner was tried occurred on December 16,

1974. Defendant was indicted on December 23, 1974, and counsel was appointed

on January 7, 1975. Defense counsel conscientiously filed a request for dis-

covery on January 7, 1975, pursuant to Criminal Rule 14, Ohio Rules of Criminal

Procedure. The case was scheduled for trial on February 18, 1975. After

waiting the appropriate number of days, defense counsel on January 28, 1975,

filed a motion with the Trial Court, as discovery had still not been provided.

Along with the motion for discovery, counsel requested a continuance, alleging

that the failure to provide discovery had “seriously hampered the ability of

counsel to adequately counsel and represent the Defendant." Counsel's memo-

randum in support of his motion included the following language:

. It is felt that such efforts are presently insuffi-

cient to guarantee to the defendant his right of effec-

tive assistance of counsel.

. Counsel for the defendant has spoken to Mr. James

O'Grady, Chief Trial Counsel for the Prosecuting Attorney,

and was informed that Mr. O'Grady had no objections to a

continuance of trial of this defendant until completion

of the trials of other parties allegedly involved in the

instant offense.

. Counsel for the defendant further asserts that ad-

ditional time is necessary for the completion of research

of legal issues presented by the present case, and, neces-

sarily research will be affected by the nature of the ma-

terial as yet to be received from the Prosecuting Attor-

ney.

When the requested discovery was finally provided on February 4, 1975,

it left defense counsel a mere fourteen days in which to interview nearly six-

ty witnesses and to otherwise prepare for trial. Faced with this unvorkable

situation, defense counsel on February 5, 1975, filed a supplemental memoran-

dum with the Court in which he argued the necessity for a continuance. Counsel's

memorandum concluded:

Insufficient time remains available to counsel

to render effective assistance to their client

at a trial scheduled to commence February 18,

1975.

The Trial Court did not grant a continuance. As a result, counsel was unable

to interview some witnesses, including Robert Boswell and Michael Goins, key

witnesses for the State, prior to trial. Boswell was an important witness

for the State of Ohio at trial, yet defense counsel was unable to determine

his address or whereabouts before trial began. Petitioner objected to Boswell's

testimony at trial on the grounds that he was not provided with proper discovery,

i.e., a new address for Boswell which the prosecution had 10 days before trial

but never provided to defense counsel, but was overruled. (Tr.231). Petitioner

also objected to the testimony of Stephen Molnar, Jr., Chief Firearms Examiner

for the Ohio State Bureau of Criminal Investigation, concerning firearms com-

parison tests conducted just two days before the trial began because he was not

provided with the results thereof prior to trial. (Tr. 156). This objection was

also overruled. Petitioner now argues that the overruling of his motions for

a continuance was, under these circumstances, an abuse of discretion which re-

sulted in a denial of his rights to the effective assistance of counsel.

It has been repeatedly recognized that the right to counsel guaranteed

each criminal defendant through the Fourteenth Amendment means the right to

effective counsel. Where conditions are such that a criminal defendant is ac-

corded ineffective assistance he has been denied a basic constitutional right.

Beasley v. United States, 491 F. 2d 627 (6th Cir. 1974). However, the right

to effective counsel can be denied where counsel is not given an adequate oppor-

tunity to render effective assistance. For example, appointment of counsel so

late that an adequate time to prepare a defense is precluded, can constitute in-

effective assistance. At least one judicial circuit has held that tardy appoint-

ment of counsel constitutes ineffective assistance per se. Coles v. Peyton, 389

F. 2d 224 (4th Cir. 1968).

Petitioner maintains that the failure to grant an obviously essential

continuance in a death penalty case likewise constitutes a denial of his right

to the effective assistance of counsel. To be sure, the inability of counsel to

interview key witnesses for the State and not be aprised of the firearms test

results prior to trial seriously hampered counsel's judgment regarding plea bar-

gaining. However, more importantly, counsel's unawareness of this evidence ef-

fectively prevented him from adequately preparing for cross-examination. Counsel's

requests, in light of these facts, was terribly necessary and the Trial

Court's denial rendered counsel practically ineffective in these areas.

Numerous federal Courts have considered this issue, and while all agree that

the grant of a continuance is within the sound discretion of the Trial Court,

each case must be analyzed on its own facts to determine if an abuse of dis-

cretion leading to a constitutional violation has occurred. In the leading

case on the subject, Ungar v. Sarafite, 376 U.S. 574 (1964), the Court observed:

The matter of continuance is traditionally within

the discretion of the trial judge and it is not

every denial of a request for more time that vio-

lates due process... Contrariwise, a myopic in-

sistence upon expeditiousness in the fact of a just-

ifiable request for a delay can render the right

to defend with counsel an empty formality. There

are no mechanical tests for deciding when a denial

of a continuance is so arbitrary as to violate due

process. The answer must be found in the circum-

stances present in every case... (p. 590).

Petitioner argues that the instant case represents the type of situation

described in Ungar. The instant case, being a capital case, is of a character

which demands strick adherence to principles of fairness. It is essential that

in a prosecution which may result in a death sentence, the defendant be ac-

corded every opportunity to adequately prepare and present his evidence. Where

the defense is confronted with a list of 60 witnesses just fourteen days before

trial and counsel represents he cannot adequately be prepared, the interests

of justice require that a continuance be granted. Moreover, the instant case

involved a complex set of facts suggesting that a group of persons were in-

volved in a conspiracy to commit a murder-for-hire. Inasmuch as a determination

of Petitioner's guilt turned on a careful examination of his interaction with

others, it was especially crucial that his counsel be provided an adequate

amount of time to interview the numerous witnesses, evaluate the evidence, and

assemble a case.

Of the United States Courts of Appeals which have considered such claims,

none has presented so compelling a case in favor of the necessity of a continu-

ance. Nonetheless, federal Courts have acknowledged that the unjustified re-

fusal to grant a continuance may result in a violation of the right to counsel.

In United States v. Collins, 435 F. 2d 698 (7th Cir. 1971), the 7th Circuit

found no abuse of discretion in the failure to grant a continuance where it

determined that the case was uncomplica‘ed. the defense had already been granted

one continuance, and there were only two witnesses to be interviewed by counsel.

Similarly, in United States v. Frattine, 501 F. 2d 1234 (2nd Cir. 1974), the

Court found no abuse of discretion or denial of cunstitutional rights where

the continuance was sought for the purpose of bringing in additional evi-

dence which the Court found to be probably cumulative. Nonetheless, Judge

Friendly dissented, arguing that the defense should not be put to the task

of proving the desired evidence was not merely cumulative. The dissent

found on these facts “an arbitrary denial of his counsel's requests for a

continuance." p. 1238. See also Stans v. Gagliardi, 485 F 2d 1290 (2nd

Cir. 1973), where the Court emphasized the importance of favoring the inter-

ests of justice over a desire to keep an efficient Court docket.

Petitioner urges that the refusal of the Trial Court to grant his

counsel's request for a continuance, on the facts of this case, clearly re-

presented an abuse of discretion which rose to the level of a constitutional

violation. Petitioner, therefore, urges this Court to grant certiorari to

consider whether he has been denied his Fifth and Fourteenth Amendment rights

to due process and the effective assistance of counsel.

Ill. THIS COURT SHOULD GRANT CERTIORARI TO CONSIDER WHETHER

THE TRIAL COURT'S ACTION IN ALLOWING, OVER OBJECTION,

THE ADMISSION OF HEARSAY EVIDENCE CONCERNING A TAPE RE-

CORDING OF A CONVERSATION BETWEEN TWO KEY STATE WIT-

NESSES, AND THEN FAILING TO INSTRUCT THE JURY TO DISRE-

GARD THIS TESTIMONY AFTER REFUSING TO ADMIT THE TAPE

INTO EVIDENCE, VIOLATED PETITIONER'S FIFTH, SIXTH, AND

FOURTEENTH AMENDMENT RIGHTS TO A FAIR TRIAL AND DUE

PROCESS OF LAW.

Throughout Petitioner's trial, the jury's attention was repeatedly di-

rected by the prosecution to the existence of a tape recording made by detec-

tive Ronald Price. (Tr. 222, 223, 229, 230, 239, 264, 269). The recording

was of a conversation between two key State's witnesses, Robert Boswell and

Michael Goins. Defense counsel entered a continuing objection to any testimony

concerning the existence or contents of the tape. Over objection, the Court

allowed repeated reference to the tape by witnesses Price and Boswell, allowed

parts to be played before the jury, and allowed some testimony concerning the

substance of the tape. Later in the State's case, the Court found that the

tape recording itself constituted highly prejudicial hearsay evidence and ruled

that it could not be admitted into evidence. (Tr. 328).

Petitioner argues that the Court's failure to instruct the jury to dis-

regard the repeated testimony concerning the tape, on the facts of the case,

constituted a denial of his Fifth, Sixth and Fourteenth Amendment rights to

a fair trial and due process of law. While Trial Counsel did not specifically

request such a curative instruction, he had objected repeatedly to the testi-

mony about the tape, and the failure to give a curative instruction must be

regarded as plain error, within the meaning of Ohio Rules of Criminal Procedure,

Rule 52(B), which reads:

Plain error or defects affecting substantial rights

may be noticed although they were not brought to the

attention of the court.

Petitioner argues that on the facts of this case, the failure of the

Court to properly instruct the jury concerning the tape must be regarded as hav-

ing denied him substantial constitutional rights. It is difficult to assess with

precision the effect which the persistent references to the tapes had upon the

jury, but it is clear that they were time and again told that in effect the State

had in its possession highly damaging evidence implicating Petitioner in the

murder plot. The much talked about tape, and the prosecution's relentless efforts

to have it admitted, most of which occurred in the hearing of the jurors, doubt-

edly created the strong inference that if it were played in its entirety, it

would have added credibility to the testimony of Boswell and Goins, the State's

two key witnesses.

In affirming Petitioner's conviction and death sentence, the Ohio Supreme

Court acknowledged that it was largely on the testimony of Boswell and Goins that

Petitioner was convicted. As the Court observed:

According to Boswell, Weind stated that he and

Carl Osborne were responsible for the murder and

that Carl actually fired the fatal shots. Weind

told Boswell that when Mrs. Ross struggled on the

Ontario store parking lot, he hit her on the head

with a gun... Weind, supra, p. 238.

In reviewing the totality of the evidence, the Court demonstrated that it was

the testimony of Boswell and Goins which, if believed, provided the most convinc-

ing evidence against Petitioner. In light of this finding, any errors at trial

which had the effect of adding credibility to the stories of Boswell and Goins

were highly prejudicial. The Court erred in allowing the considerable amount of

testimony concerning the tape over the continuing objection of defense counsel,

but more importantly, irreparably damaged Petitioner's rights to a fair trial

and due process when it elected not to instruct the jury to disregard all testi-

mony concerning the tape, which the Court found to be highly inflammatory. In

short, the tape recording had no place at Petitioner's trial and it was the Court's

a eT ea es ee

duty to take its own initiative to guarantee that the existence of the tape

play no part in the determination of Petitioner's guilt or innocence.

The response of the Ohio Supreme Court to this argument was highly

confusing and indicative of a callous attitude toward Petitioner's fundamental

rights. The Court observed:

In the instant case, failure of the rrial judge to

give the jury specific instructions regarding the

tapes did not constitute an error that affected the

defendant's substantial rights under Crim. R. 52(B)

since mention of the tapes by the judge would have

ca the jury's attention to them to the prejudice

of the de ant. mphasis added). Weind, supra,

p. 23/7.

To suggest that a curative instruction would further prejudice Petitioner

is an untenable position. It has been recognized that a curative instruction

is presumed by our legal system to cure error. United States v. Rojas, 537 F.

2d 216 (5th Cir. 1976); United States v. Wells, 431 F. 2d (6th Cir. 1970).

Further, there is ample support for the proposition that if substantiated

rights of the Defendant are involved, the curative instruction should be given

sua sponte. United States v. Roundtree, 527 F. 2d 16 (8th Cir. 1975); United

States v. Esquer, 459 F. 2d 431 (7th Cir. 1972), cert. denied, 414 U.S. 1006.

As the D.C. Circuit Court of Appeals noted in United States v. Bernett, 495 F.

2d 943, at 963:

New trials will be granted where the omitted instruc-

tion deals with a legal principle of such magnitude

that had the jury considered it, the verdict could

have been substantially affected.

Petitioner contends that this test applies to his conviction. The added

credibility which the testimony concerning the tape added to the testimony of

Boswell and Goins could well have substantially affected the verdict. A capital

case is far too serious a matter to overlook such a potentially prejudicial and

damaging error. Petitioner, therefore, urges this Court to grant certiorari to

consider this issue of great importance.

CONCLUSION

For these reasons, a writ of certiorari should issue to review the

judgment and opinion of the Supreme Court of Ohio.

Respectfully submitted,

James Kura

Franklin County Public Defender

By jWitcee Pua As

JAMES\ KURA .

Franklin County Public Defender

Member of the Bar of the Supreme

Court of the United States

400 South Front Street

Columbus, Ohio 43215

Phone: (614) 224-0570

and

Assistant/Fran lic Defender

400 South Front Street

Columbus, Ohio 43215

Phone: (614) 224-0570

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was personnally delivered

to the Office of the Prosecutor, Franklin County Hall of Justice, Columbus,

Ohio 43215, this 23” “day of November, 1977, in compliance with Rule 33(1) of

the Rules of the United States Court.

Y :

, + a YOu ea

J KURA \

Franklin County Public Defender

Member of the Bar of the Supreme

Court of the United States

400 South Front Street

Columbus, Ohio 43215

Phone: (614) 224-0570

and

400 South Front Street

Columbus, Ohio 43215

Phone: (614) 224-0570

APPENDIX A

Supreme Court of the United States

No. A-290

JAMES KENNETH WEIND,

Petitioner,

OHIO

ORDER EXTENDING TIME TO FILE PETITION FOR

WRIT OF CERTIORARI

Upon ConsIDERATION of the application of counsel for petitioner¢s),

Ir Is OrpEReED that the time for filing a petition for writ of certiorari in

the above-entitled cause be, and the same is hereby, extended to and including

November 25 __ 19 77

/s/ Potter Stewart

Associate Justice of the Supreme

Court of the United States

Dated this __27th

September 19.77 .

day of

APPENDIX B, is the Opinion of the Court in State v. Weind

(1977), 50 Ohio St.2d 224., and has not been reproduced here.

; , SC-8 (BLANK ENTRY) ~vS3> = Dananarr Beorwens, Puscisnens, Spaivcriein, Omo ,

—

* =<

APPENDIX C

THE STATE OF OHIO,

19..47.. TERM

City of Columbus. J

State of Ohio, Mae

Appellee, saa. A. Sos Se

= pew, 4

James Kenneth Weind, REHEARING

Appellant.

It is ordered by the court that this motion be denied. al

I, THOMAS L. STARTZMAN, Clerk ofthe Supreme Court of the State of Ohio, — '

do hereby certify that the foregoing entry was correctly copied from the records of

said Court, to wit, from Journal No........... ee

IN WITNESS WHEREOF, I have hereunto subscribed ix>*

my name and affixed the seal of the Supreme Court om; *

this....23°9.day of November 19...27

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APPENDIX D

IN THE COURT OF APPEALS ui! FRANKLIN COUNTY, OHIO

BG POS

. iw

ke State of Ohio,

a Plaintiff-Appellee,

rs v. ° No. 75AP-355

James Kenneth Weind,

Defendant-Appel lant.

BEN HEE t AEASS

ne) oy A e

a TT.

* ree: *

DECISION’

acy

. tox

Rendered on August 10, 1976

MR. GEORGE C. SMITH, Prosecuting Attorney,

MR. DAVID J. GRAEFF, Assistant,

Franklin County Hall of Justice,

569 South High Street,

Columbus, Onio,

For Plaintiff-Appellee.

MR. JOHN C. NEMETH,

673 Mohawk Street,

Columbus, Ohio,

For Defendant-Appel lant.

McCORMAC, J.

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No. 75AP-355 2

Appellant was charged with two counts of aggravated murder

(R. C. 2903.01) and one count of kidnapping (R. C. 2905.01), all pertain- |

ing to the alleged kidnapping and murder of Hermalee Ross on December 15, oe

1974. It was further specified by the grand jury that the aggravated

murder was committed with prior calculation and design during a kidnapping

(R. C. 2929.04[A][7]) and that the offense was committed for hire (R. C.

2929.04[A][2]). Appellant was found guilty of all charges and specifica-

tions. Two codefendants were also tried separately upon the same charges,

found guilty and given death sentences.

;

Following the guilty finding by the jury, the trial judge, as

required by R. C. 2929.03, ordered a presentence investigation and

psychiatric examinations to be made and reports submitted to the court, ’

and heard testimony and other evidence pursuant to R. C. 2929.03 (0D). Upon

consideration thereof, the court found that none of the mitigating circum-

Stances listed in R. C. 2929.04 (B) had been established by a preponderance

of the evidence and imposed the sentence of death as required by law. From

that judgment appellant has filed a timely notice of appeal, setting forth |

the following assignments of error:

"(1) The court erred by abusing its discretion

in overruling defendant's motion for a continuance :

and this violated defendant's constitutional rights.

"(2) Defendarit was denied fundamental fairness

inherent with his constitutional right to due process f

of law and a fair trial when discoverable informa-

tion requested and moved for earlier by counsel for

defendant was not so provided. |

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No. 75AP-355 3

"(3) The trial court erred in not granting

defendant's motion for mistrial or in ordering

the same upon the repeated examples of trial

publicity and in not effectively instructing

= jurors to disregard the same.

"(4) The court erred in calling Michael Goins

as a court witness and in applying the wrong

legal standard to Mr. Goins' status when he

testified. wil

"(5) The trial court erred in not instructing

the jury to disregard all testimony regarding

alleged tape recordings between witness Boswell

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eee and witness Goins and especially as to the

S. substance after it had ruled that they would not

i ay be admitted into as evidence.

; "(6) The trial court erred in admitting into

‘ha evidence hearsay testimony thus denying defendant

a his right to confrontation and due process of law.

ot >

"(7) The jury verdict of quilty in this case is

te not supported by sufficient evidence and hence

ae is contrary to law.

5 "(8) The court erred in not requiring the

£S- prosecuting attorney to elect which count of

aggravated murder he wanted to go to the jury.

a ik

"(9) The trial court erred when it refused to

charge the jury on the lesser included offense

of obstruction of justice and recharged the jury

on aggravated murder when, in light of the

repeated requests for re-reading of testimony,

a hung jury should have been declared.

"(10) Section 2929.04 0.R.C. is unconstitutional

in that it violates the Eighth and Fourteenth

Amendments to the Constitution of the United

States and Article I, Section 9 of the Constitu-

tion of Ohio.

"(11) The death penalty offends contemporary

Standards of decency and constitutes cruel and

unusual punishment prohibited by the Eighth and *

Fourteenth Amendments to the Constitution of ,

the United States. ;

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No. 75AP-355 | 4

"(32) Section 2929.03 is unconstitutional on

its face and/or unconstitutional] as it is applied,

"(13) The sentencing stage following a con-

viction for aggravated murder with specifica-

tions is unconstitutional and the trial court

applied an erroneous legal standard during the

mitigation hearing.

"(14) If the court is correct and there is no

burden on either party, the court clearly abused

its judicial discretion in not finding the existence

of mitigating circumstances. "

The prosecution presented direct and circumstantial evidence

which, if believed by the jury, proved that appellant had been paid

$500 to participate in the kidnapping and murder of Hermalee Ross on

December 15, 1974. The initial kidnapping took place in Franklin County

after which the victim was transported to Delaware County, where she was

murdered in an abandoned schoolhouse by shots from a handgun. Further

facts will be discussed in relation to the assignments of error to which

they are pertinent.

The court will first consider assignments of error ten through

fourteen, which relate to the constitutionality of the death penalty in

Ohio as imposed in this case, including the procedure utilized

herein.

Subsequent to the decision of the United States Supreme Court,

in Furman v. Georgia (1972), 408 U. Ss. 238, 92 S.Ct. 2726, the Ohio General

Assembly enacted new state laws (R. C. 2929.02 through 2929.04), effective

January 1974, reinstating the death penalty in Ohio, the previcus Ohio

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No. 75AP-355 5

Provisions for imposition of the death sentence having been rendered

unconstitutional by the Furman decision. A review of the Ohio provisions

for the death penalty to determine the constitutionality thereof is

4 necessary since the United States Supreme Court has recently set forth

e , guidelines for that determination by five decisions rendered on July 2,

3: 1976, applicable to the Statutory scheme adopted by legislatures in other

> F States who had also reacted to the Furman decision by adopting revised

in provisions for implementation of the death penalty. Gregg v. Georgia,

é Proffitt v. Florida, Jurek v. Texas, Woodson v. Worth Carolina, Roberts v.

3 . Louisiana (1976), 44 U. S. Law Week 5229-5292. In none of these cases

4 . was the Ohio method specifically discussed although, as will be related

: hereafter, the aforesaid decisions apply the basis for a determination of

| the validity of the Ohio laws.

R. C. 2929.04 (A) sets forth seven aggravating circumstances,

at least one of which must be found by a jury to justify the death penalty.

=I ‘ Those are:

"(1) The offense was the assassination of the

president of the United States or person in line

of succession to the presidency, or of the governor

or lieutenant governor of this state, or of the

president-elect or vice president-elect of the

¥ United States, or of the covernor-elect or lieu-

a. tenant governor-elect of this state, or of a

candidate for any of the foregoing offices. For

purposes of this division, a person is a candidate

if he has been nominated for election according

to law, or if he has filed a petition or petitions

{- according to law to have his name placed on the

~~ ballot in a primary or general election, or if

he campaigns as a write-in candidate in a primary

or general election.

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No. 75AP-355 6

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f "(2) The offense was committed for hire.

; "(3) The offense was committed for the Purpose

it of 2scaping detection. apprehension, trial, or

' punishment for another offense committed by the

, offender.

"(4) The offense was committed while the offender

waS a prisoner in a detention facility as defined

in section 2921.01 of the Revised Coda.

"(5) The offender has previously been convicted

Of an offense of which the gist was the purposeful

killing of or attempt to Kill another, comnitted

i prior to the offense at bar, or the offense at

bar was part of a course of conduct involving the

purposeful killing of or attempt to kill two or

ww ee we ow

Se et ee ee eee oe

Ri nore persons by the offender.

' | "(6) The victim of the offense was a law enforce-

Me ment officer whom the offender knew to be such,

}! and either the victim was engaged in his duties

i. at the time of the offense, or it was the of fend-

er's specific purpose to kiil a law enforcement

2 officer,

i i

yt "(7) The offense was committed while the offender

\. was Coumitting, attempting to commit, or fleeing

i! imnediately after committing or aticnpting to

i commit kidnapping, rape, agqravated arson, aggra-

vated ,obbery, or aggravated burglary."

‘

b ie Se , — : ;'

i Thus, the Ohic jaw permits a finding of aggravating circumstances

t Giving rise to consideration of the death penalty only in the instance of

1 One or more of the seven specified types of aggravating circumstances in

conjunction with a murder. Two of those Circumstances were presented to

a, eo

the jury in this case and found to exist as a fact beyond a reasonable doubt.

i .

Those were murder for hire and murder while committing the crime of kid-

_—.

; napping.

-2560-

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No. 75AP-355 7

R. C. 2929.03 (E) makes mandatory the imposition of the death

penalty where the requisite factual findings have been made by the jury

beyond a reasonable doubt, unless the trial court makes a factual finding

by a preponderance of the evidence that one or more of the mitigating

circumstances set forth in R. C. 2929.04 (B) is involved. R. C. 2929.04 (B)

provides, as follows:

"(B) Regardless of whetier one or more of the

aggravating circumstances listed in division (A)

of this section is specified in the indictment

and proved beyond a reasonable doubt, the deat"

penalty for aggravated murder is precluded when,

considering the nature and circumstances of the

offense and the history, character, and condition

of the offender, one or more of the Following is

established by a prepondence [preponderance] of

the evidence:

"(1) The victim of the offense induced or

facilitated it.

"(2) It is unlikely that the offense would have

been committed, but for the fact that the offender

was under duress, coercion, or strong provocation.

"(3) The offense was primarily the product of the

offender's psychosis or mental deficiency, though

such condition is insufficient to establish the

defense of insanity."

As we pointed out in the case of State v. Harris, unreported case

number 74AP-580 (1975 Decisions, page 1316), under Ohio law no discretion is

vested in the court or jury as to whether to impose the death penalty under

this method. On the other hand, certain factual determinations are required

to be made. The jury must separately determine whether the defendant is

guilty of aggravated murder and whether he is guilty of the particular form

-2561-

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> e432

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to be made,

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No. 75AP-355

» € 2929.03 (E) makes mandatory the impos

ition of the death

Penalty where the requisite

beyond a reasonable doubt

by a Preponde more of the Mitigating

is involved.

a €. 2929.04 (B)

Provides, as follows:

"(B) Regardless Of whether one or more of the

aggravating Circumstances listed jn division (A)

Of this soces

> SCCtion is specified jn the indictment

P eyond a reasonable doubt, the deat’

Penalty for 299ravated Murder js Precluded when,

CONSi dering

the nature and Circumstances Of the

Offense and the » and Condition

history, Character

Of the offender, he Following is

One or more of t}

Cstablishog by a Prepondence [preponderance ] of

the Cvidence:

"(1) The Victim of

facilitated it.

"(2) It is Unlikely that the offe

been committed, but #

WaS under duress, cc

"(3) The Of fens

Offender'

the Offense induced or

NS@ would have

or the fact that the Of fender

*rcion, or Strong Provocation.

e was Primarily the Product of the

S PSyChosis or Menta] ici

CTiciency, though

is insufficient CO establish the

defense of insanity,"

» Page 1316),

On the Other hand,

The Jury must Separately determine whether the defendant is

r and whether he is guilty of the Particular form

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No. 75AP-355 8

of aggravated murder which requires imposition of the death penalty.

If the jury so finds, the tria] court must then make a factual Finding

as to the existence of one or more of the mitigating circumstances. The

court has no discretion as to whether or not to impose the death penalty,

but must impose it unless it is established by a preponderance of the

evidence that at least one of the three mitigating circumstances exists,

and cannot impuse the death penalty otherwise.

In light of the recent decisions of the United States Supreme

Court, we must first consider whether the general statutory scheme in Ohio

meets constitutional muster. If the answer to that question is in the

affirmative, we must then consider whether the particular application of

those laws to the case at hand meets constitutional and legal requirements.

The first issue, which is now easily answered, is whether the

death penalty in itself violates the prohibition against cruel and unusual]

punishment, prohibited by the Eighth Amendment to the Constitution of the

United States. That question was left unanswered in Furman, but was

unequivocally answered to the contrary in Gregg v. Georgia. The United

States Supreme Court pointed out that history and precedence Strongly support .

a negative answer to this question. Legislative response, as indicated by

the Ohio statute, demonstrates society's endorsement of the death penalty

for murder. In Short, a local determination that capital punishment may be

necessary in some cases has not been demonstrated to be clearly wrong.

However, because capital punishment is unique in its severity and irrevocability,

the Supreme Court has stated that the punishment of death must not be dis-

proportionate in relation to the crime for which it is imposed. In Ohio,

as in Georgia, capital punishment has been imposed only for the crime of

-2562-

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No. 75AP-355 9

murder, where a life has been taken deliberately by the offender, in

which instance the United States Supreme Court held that it cannot be

Said, as a constitutional Proposition, that the punishment is invariably

disproportionate to the crime. Thus, the death penalty provided for in

Ohio is not in itself constitutionally invalid.

The next issue is whether the Ohio method for imposing the

death penalty creates a substantial risk that it will be inflicted in an

arbitrary and capricious manner, as prohibited by the court in Fursnan.

“Furman mandates that where discretion is afforded a sentencing body on

a matter so grave as the determination of whether a human life should be

taken or spared, that discretion must be Suitably directed and limited so

as to minimize the risk of wholly arbitrary and capricious action."

Gregg v. Georgia, supra.

Georgia, as Ohio, narrowed the class of murders subject to capital

° i”

punishment by specifying ten Statutory aggravating circumstances, one of

Ae 2

‘<a

”

which must be found by the jury to exist beyond a reasonable doubt before a

wats

aly

death sentence can be imposed. Ohio has listed only seven such circumstances,

—

all of which are very similar to those approved in Georgia and those referred

8 eo

”*

to in the inodel penal code, referred to with approval as guidance in the

Gregg decision. Thus, the nature of offenses for which aggravated murder

with specifications can be found in Onio is guided by standards sufficiently

specific to eliminate the element of capriciousness prohibited in the Furman

case. The fact that the jury has the power to decline to impose the death

penalty, by failing to find one or more Statutory aggravating circumstances

-2563-

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No. 75AP-355 10

to be present, does not create a substantial risk of arbitrariness or

caprice. Gregg v. Georgia. The test is that of discretion, controlled

by clear and objective Standards, rather than total lack of discretion.

To this point, the Georgia method is similar to that in Ohio;

however, the two systems deviate at this point. The Georgia system *e

requires the State Supreme Court to review the comparability of each

death sentence with the sentences imposed on Similarly situated defendants,

to insure that tie sentence of death in a particular case is not dispropor-

tionate, as well as Providing a bifurcated proceeding at which the sentencing

authority is apprised of the information relative to the imposition of

sentence, and provided with Standards to guide its use of that information.

a —-

Another basic difference between Gecrgia and Ohio is that more snecific

mitigating circumstances are permitted in Georgia than in Ohio. In addition,

the court finds mitigating circumstances in Onio ratner than the jury. In

both states there is a constitutional right of appeal to the highest court

in the state, th- Supreme Court, but in Ohio there is no specific provision

for comparing death sentences in one case to those in another.

The first question that arises is wnether the three mitigating

—AaR

circumstances in Ohio are Sufficient to pass constitutional muster. A

review of those factors indicates that they are. Two of them are similar.

to those set forth in the model code. Those are that the victim of the

i ee

offense induced or facilitated it or that the offender was under duress,

coercion or strong provocation. The other mitigating circumstance in Ohio

combines the remaining factors set forth in the model code. The specific

-2564-

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- No. "75AP-355 W

mitigating factor is that 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. In considering this

mitigating Circumstance, the court is instructed to consider the nature

and circumstances of the offense and the history, character and condition

Of the offender. This permits, if not instructs, the court to consider

*. factors such as prior history of criminal activity, the amount of partici-

pation by the defendant when accomplished by another person, thc youth of

the defendant at the time of the crinic, as well as the mental and physical

condition of the defendant. The fact that the trial] judge makes this

determination in the bifurcated trial, rather than the Jury, does not

‘render the Ohio inethod unconstitutional.

In Florida, a jury renders an advisory verdict, but the final

determination is by the court who is not required to follow the jury's

recommendation of wercy if the facts are clear and convincing ‘in Suggesting

a death penalty so that Virtually no reasonable person could differ. That

method is constitutional. See Proffitt v. Florida. As the Supreme Court

pointed out in Proffitt, judicial sentencing should lead to greater con-

Sistency in sentencing, as a trial judge is more experienced in sentencing

than a jury. The fact that determination of mitigating circumstances and

subsequent sentencing is exclusively placed in the hands of the trial court

in Ohio is proper.

The fact that Ohio has not specified Standards for review and

comparison of death sentences as does Georgia and Florida does not invalidate

. -——,

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No. 75AP-355 12

the Ohio procedure. Ohio, like Texas, provides for automatic and prompt . 7

judicial review of capital sentences by the highest court in the state.

Thus, a constitutional means of review is provided to assure the even-

handed, rational and consistent imposition of death sentences under law.

~ ee es

In Texas, although there is no specific reference to mitigating

‘

~~ ae eee

circumstances, the jury is required to focus on the particularized nature

of the crime, thus climinating the arbitrariness and caprice of the system

invalidated in Furman. ‘ee Jurek v. Texas. In Chio, the jury must find

the existence of aggravating circumstances beyond a reasonable doubt. The

court must make a factual finding of mitigating circumstances.

A review of the five cases shows that a proper system must

provide a method for fact finding as to both aggravating circumstances and

mitigating circumstances. Ohio provides both, albeit in a slightly

different form than in Gregg, Proffitt or Jurek. Clear standards are

Provided for both determination of aggravating circumstances and determina-

tion of mitigating circumstances, contrary to the North Carolina system,

. . .

Se Mabe ~~ eS ee pee ee

where no standards were provided to guide the jury in determining which

murderer shall live and which shat] die, thus treating all persons convicted ~

of a designated offense as members of a faceless, undifferentiated mass.

see Woodson v, North Caroline. The Louisiana method was also declared

unconstitutional as the mandatory death penalty statute required execution

of the death penalty regardless of any mercy recommendations, but permitted

the jury to consider verdicts on the lesser charges of second-degree murder

and manslaughter, even if no evidence Supported the lesser verdicts. Roberts v.

Loutstana.

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No. 75AP-355 13

In substance, the five cases decided by the United States

Supreme Court establish three factors that must be contained within a

System for imposing the death penalty in order for it to meet consti-

tutional muster against arbitrariness or caprice. First, there must be

a reasonably definitive systei for reaching a factual finding as to the

existence of aggravating circumstances. Ohio requires such a finding by

the jury beyond a reasonable doubt. second, there must be opportunity

for consideration of mitigating circumstances of a sufficiently definitive

nature. Ohio provides for consideration of ail relevant mitigating cir-

cumstances in a sufficiently definitive way to meet constitutional muster.

The fact that the finding is by the court, rather than the Jury, does not

affect the constitutionality of the Ohio statutes. Third, there must be 3

Opportunity for appellate review in death penalty cases, inferentially

by the highest court in the Stale, who can provide the degree of uni formity

by their review necessary to act as a safwquard against arbitrary imposition

of the deati sentence on a different basis in one section of the state than

in another. The nature of the review need not be set forth specificaily.

Ohio has provided that opportunity by making mandatory the review of death

penalty cases by the Ohio Supreme Court.

None of the systems reviewed by the United States Supreme Court

involve a jury finding of aggravating factors beyond a reasonable doubt and

a finding by the trial court of mitigating circumstances by a preponderance

of the evidence. It is our opinion that this System not only meets consti-

tutional muster, but also that it is the best method for uniform imposition

-2567-

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No. 75AP-355 14

% t : of the death penalty, once the policy decision to provide the death

penalty has been made. At the point that the court considers mitigating

circumstances, we have had a unanimous jury finding that a specific

aggravating circumstance existed beyond a reasonable doubt. At that

ri point, it is appropriate, within the local legislative prerogative, to re-

i. quire an affirmative finding by the preponderance of the evidence that there

7 was some specific factor in the nature of the crime or propensity of the

: ne individual to miti§ate the death penalty that would otherwise follow. In

‘

' ;

} the bifurcated trial, there is an opportunity at this point to place before

it the court all circumstances relating to the consideration of mercy to the

defendant. The trial court is required to order a presentence investigation

i and a psychiatric examination to be made with copies of the reports to be

jf furnished to the offender and his counsel. The offender may make a statement

without being subjected to .cross-examination, if he chooses not to be under

Oath. While the procedure for inflicting the death penalty may place a

te greater burden upon the defendant in regard to mitigating circumstances

HH than in some other systems, it also provides a fair and nonarbitrary system

f. for that determination. It ¢s within local leyislative discretion to require

that the mitigating circumstances be shown by the preponderance of the evidencc

Knowledge of mitigating circumstances is much more peculiarly within the

. hands of the defendant than the prosecution. The defendant has no specific

burden to produce proof of mitigating circumstances and the court has the

burden to order evidence to be produced by objective outsiders not connected

to either the prosecution or the defendant.

-2568-

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No. 75AP-355 15

Consequently, in light of the recent decisions of the United

States Supreme Court, the Statutory scheme for enforcement of the death

penalty in Ohio meets constitutional muster and is not in itself improper.

Proof of lack of mitigating circumstances is not an affirmative defense

nor an item of proof placed upon the prosecution by R. C. 2901.05. As

in many other criminal] cases, the court is given the authority to mitigate

punishment that would otherwise be

oe ae tS

applicable by individually reviewing

”

™,

a BAS

circumstances concerning the crime and the individual who committed it.

The only basic difference is that more specific guidelines are provided

for the court to consider in finding mitigating circumstances to contro]

its discretion within constitutional limits.

lr <~

rae gt

|”

“2 ee

‘, .

Assignments of error ten through thirteen, all of which challenge

the general system of determiniig death sentences in Ohio, are overruled.

* hin

py)

The only specific attack upon the procedure herein is contained

in the fourteenth assignnent of error, where it is charyed that the court

2 ,

abused its judicial discretion in not finding tl

Ore

i@ existence of mitigating

att

circumstances.

—

. -

Following the jury verdict of guilty of aggravated murder with

aap

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Specifications, the court ordered a mitigation hearing, as required by

R. C. 2929.03 (D).

Prior to the hearing, the court ordered a presentence

investigation and referred the defendant for two psychiatric examinations.

> ay is “1 a ae oc

The hearing was conducted by the court, calling the psychiatrists to the

™”)

“Stand and first examining them himself. The first psychiatrist, Dr. Jack

Eis

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Morganstern, testified that he is board certified in adult, child and

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a. — —

No. 75AP-355 : 16

aii: administrative psychiatry, and is executive director of the Columbus

Area Community Mental Health Center. Dr. Morganstern testified that he

—_———

found no evidence of psychosis, mental deficiency or other psychiatric

disorder on the part of the defendant. The court permitted ample

a Opportunity for cross-examination by both the state and the defense

counsel. The second psychiatrist, Dr. Jaime Smith e Incas, who is

an associate professor of psychiatry at Ohio State University College of

Medicine, testified as to his examination of defendant. The only evidence

of mitigating factors that he stated was that the defendant felt he had

been seduced into the situation that he found himself in, to wit, convicted

of aggravated murder with specifications, by “helping a friend." Dr. Smith

€ Incas, at the first hearing, ended up by stating that he would like a

further et etait for examination before submittine a final opinion.

he was given that opportunity and, after further exa mination, he was

simply unable to state that the defendant was under a psychosis at the

time of the murder. The chief probation officer of Franklin County also

testified and stated that their investigation revealed no evidence of miti-

gating factors. The only other witnesses at the mitigation hearing were

the deferdant's mother and a friend of his mother's, both of whom testified

that he was not a violent person and that they believed him not to be

capable of the violence herein.

The appellant complains that the psychiatrists who testified

Should have been more definite as to their conclusions, rather than stating

that they did not know whether he was a victim of psychosis or that he

possibly could have been. That complaint is not well taken.

-2570-

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No. 75AP-355 17

The court conducted a fair -igation hearing, completely in

accord with the statute and permitted ample opportunity for all sides

to cross-examine witnesses or produce testimony. There was simply no

Substantial evidence of mitigating circumstances. A mere possibility is

not sufficient. We presume that such possibility would exist in virtually

every case of this type, as it is not likely that a "normal" person would

agree to participate in the kidnapping and murder of a stranger who had

never done anything tc them for the payment of $500. The defendant did

not choose to make a statement, either under oath and subject to cross-

examination, or not under oath. From tie state of the cvidence, it would

be difficult to see how the triai court could come to any other conclusion

than that mitigating circumstances had not been shown by a preponderance

of the evidence. Assignment of error number fourteen is overruled

The seventh assignment of crror is that the verdict of guilty

is not supported by sufficient evidence ang is contrary to law. This

assignuent of error requires a review of the evidence upon which the

defencant was found guilty of all counts.

An impressive chain of direct and circumstantial evidence was

produced, linking appellant to the scene of the abduction of the victim

on Morse Road and the scene of the murder in Delaware County, although

there were no direct witnesses to the murder, other than the participants.

Appellant was also linked with Carl E. Osborne, Jr., also found guilty of

aggravated murder with specifications, case number 75AP-423. Appellant

)

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. «No. 75AP-355 : 18

was identified as involved in the cleaning and changing of tires of the

car identified as being used for the kidnapping and transmitting of the , -

victim to the scene of the murder. However, by far the most incriminating

evidence was the testimony of two neighbors of appellant, who lived in

the same apartment complex. Robert Boswell testified that, on the morning

of the murder, around 11:00 a.m., the appellant came to his apartment and

‘told Boswell-he had something for him, giving him a box with cotton, in

which there was a weapon. Boswell identified state's exhibit 20, a .25

caliber Raven Automatic, as the weapon given to him. Boswell told Michael

Goins, alsa a neighbor, about the transaction. Goins came over to the

apartment and told Boswell that the “gun was hot." Appellant then related

to Boswell] and Goins details of the killing of Hermalee Ross earlier that

morning. Boswell testified that appeliant told them that he and Car]

Osborne iad abducted Mrs. Ross at the Ontario parking lot and that, during

the course of the abducticn, appellant had hit the victim on the head with ,

a second gun when she put up a struggle. Boswell stated that: this gun

was a .380 automatic and he identified state's exhibit 37 as being the same

type of gun. Appellant told Boswell that, when he hit the woman, a piece

of the gun broke off. At the scene of the abduction, officers coliected

two piece of metal, identified as being portions of the trigger guard of

a firearm. The appellant and the two neighbors then drove in appellant's 2

car to the vicinity of Alum Creek, where the appellant threw the murder

weapon into the creek and from where the gun was ultimately retrieved,

being the same .25 automatic pistol previously identified by Boswell, and

-2572-

SST er Seen gl MP Pe a ae meee ~~ oe a = ome e* ° 2°,° . ng Megat O.. —_—_

SEE ee BSE, ? SP: age pairs mee Pore S Caton Ses Soe are kG SI .

Sou S5 ache 4 aes ” Ea Dae pal , eee am Sets oa “ Pre om Be 3 oo MVE oe ee sis be AeA fey: f°

~ ore See 7e* “> -“ “Ne yn

«7?

No. 75AP-355 19

also identified as the murder weapon Ly Steve Molnar, a ballistics

firearms expert. Boswell also testified that appellant had stated that

he was paid $500 by Alberta Osborne, also convicted of aggravated murder

with specifications, case number 7SAP-327, for his part in the kidnapping

and murder.

In summary, there was overwhelming evidence, both direct and

circumstantial, of appellant's participation in the planned kidnapping

and murder for hire of Hermalee Ross. Assignment of error number seven

is overruled.

In his first assignment of oreuy: appellant complains of abuse

Oi discretion in overruling appellant's motion for a continuance. On

January 28, 1975, appellant filed a motion and memorandum in support,

including a request to continue the case set for February 18, 1975. The

reasons set forth were primarily that the prosecution had not yet provided

full discovery and the defense needed time to research legal issues. On

February 4, 1975, the prosecution filed their discovery in the case, which

was followed by appellant's Supplemental memorandum in support of a motion

for a continuance.

Granting of a continuance is within the discretion of the trial

court. There are the competing interests of Speedy disposition of criminal]

matters and providing a reasonable Opportunity to prepare an adequate

defense. The Ohio Supreme Court has discussed the test to be used in ruling

on this assignment of error, as follows:

-2573-

es -

bien: > ‘ A SO aes “Bs 9 «->? 4 - - on: aden

Ps —_ OPoe NE bo 4+ 4) Ss" ‘. ering a Sst. 00 NN aw oon tae —— eo eed a 7a! wee

es” eo Fins Me 8 Fue ee eh = WO Peds Mma y ene .

a *. _, Pu ~ -

Sacenenas So TPA, <. — ? ms Fe “Lt gee 2%

ve te IN ee A ee, i - nee tae ea ae i ey ee

~ eo Yew _, ae . > - ere a Se Ne fac? ’ - “Se

~~ ee a e°., :” ~~ ~. ’

gf. eRe 2 Ie ~~ 8 OO i q cape St, Sy”.

. }, .

Ry 7 hs

No. 75AP-355 20

- "Has the defendant, in light of the record,

received zealous and earnest counsel, and has

appointed counsel performed its ful] duty ,

“intelligently and well," . :

State v. Price (1973), 34 Ohio St. 2d 43(at 47),

A review of the entire record indicates that the defense represented

appellant as effectively as permitted by the facts of the case, and that the

trial court did not abuse its discretion in refusing to grant a continuance

requested approximately three weeks before the date that the trial was

scheduled to commence. It is further noted that defense counsel did not

renew the request for continuance at the time of the commencement of. the trial,

but, instead, sta‘ed that he was ready to proceed. Assignment of error number

One is overruled.

The second assignment of error is that appellant was denied

fundamental fairness, inherent with his constitutional right to due process

Of law and a fair trial, when discoverable information requested and moved

for earlier by counsel for defenddnt was not so provided. .

Appellant cites two occasions when he claims that discovery was

not provided in a timely manner. The first relates to the testimony of Mr.

Molnar, the chief firearms examiner for the Ohio State Bureau of Criminal

Investigation, who testified that the two pieces of metal found in the

Ontario parking lot were from the trigger guard of a hand gun, similar to

State's exhibit 37. The second complaint is that the prosecution failed to

provide a current address for Robert Boswell who had changed his address

Since the time that his address was provided to appellant in response to -

discovery. r

~2574- .

ow a Se “ese *

OPT ge ieee SY NAPA ON ASA PRS o Net

af Se *

or ita «

- *% ae ow . . . >| ay rs » eG Wat

sgh Ge LO ERA Sp lin SD eb ft SOIC at NC RE EG EGET

Pat .* . . y om 7?" ti yx - . "

. * No. 75AP-355 2)

Crim. R. 16 (D) provides as :ollows:

a "If subsequent to compliance with a request

. or order pursuant to this rule, and prior to

or during trial, a party discovers additional

matter which would have been subject to

discovery or inspection under the original

request or erder, he shall promptly make

such matter available for discovery or in-

spection, or notify the other party or his

attorney or the court of the existence of the

additional matter, in order to allow the

court to modify its previous order, or to

allow the other party to make an appropriate

request for additional discovery or inspection."

In essence, the complaint herein is not that the original

discovery provided appellant was inadequate, but that during the course

of the investioation and after initial discovery further information came

to the attention of the prosecution, who failed to timely supplement its

discovery under its continuing duty to disclose pursuant to Crim. R. 16 (D).

An examination of the recard discloses that the original discovery

? material totaled twenty-one pages, including a list of the names and

addresses of prospective-witnesses, one of whom was Robert Boswell. At

the trial, Robert Boswell was produced by the prosecution as an important

witness and appellant's counsel objected to his testimony, complaining that

appellant had been unable to contact Boswell prior to the trial because he

had changed his address. The record also indicates that the prosecution

became aware of the change of the address approximately ten days prior to

the trial and did not supplement its discovery by informing defense counsel

of Boswell's new address. However, the record also supports a finding that

defense counsel did not inform the prosecution that he was unable to contact

Boswell because of the change of address until Boswell was called as a witness.

. -2575-

» * .* i P < ~ *.

— nee ie AZ one ee ea Te a aS Se ne, a Mn

“s eg Sy Pale WSS a SrDTAT. a Pe ee ee a Gee an 4. Ps te + AN Pr ee Fax *

or" LVS eet ~~; vse , faeSPn . Mn wes welors 2 pa aa a baa ae ¢ Hale ar Tin NNN. ad ae "-

No. 75AP-355 22

While there is a continuing duty to supplement previous

discovery, including the changed address of a witness, the trial court

is vested with discretion as to Sanctions, if any, considering al]

aspects and consequences thereof. Upon a failure to supplement discovery

being brought to the attention of the trial judge, he must consider

Sanctions in the interest of justice, as set forth in Crim. R, 16 (E)(3),

as follows:

"If at any time during the course of the pro-

eedings it is brought to the attention of the

court that a party has failed to comply with

this rule or with an order issued pursuant to

this rule, the court may order such party to

permit the discovery or inspection, grant a

continuance, or prohibit the party from intro-

ducing in evidence the material not disclosed,

or it may make such other order as it deems

just under the circumstances. "

The court, within its discretion, permitted Boswell to testify,

as the record did not indicate that defendant contacted the prosecution tu

try to ascertain an up-to-date address prior to trial. The efforts of

defense counsel may be considered in exercising the court's discretion, as

well as the duty of the prosecution to supplement its discovery. An over-

Sight of the prosecution cannot be used unconscionably to prevent important

testimony from being heard. _Moreover, the record does not indicate that

a continuance was requested by defendant in order to prepare for Boswell's

testimony or that Boswell's testimony would have been any different or

the cross-examination any more effective had Boswell's address been timely

supplemented.

-2576-

a * ~ . . .

rae RI re FS PN we TE ie PP TAN ee eke Me

gia is

“~, % i i «A . _ . “wet 4 . Veree .

POPS DG gO NERS OE PENNY og

q ah or om = Sar « ’ ‘—-* , -\ oe » y a,* > 4

SE SEIN EIEN IN EN OS rt

v .

a A vee . - * Ae . ,¢

Seas ane a Potente 7

No. 75AP-355 23

As to the location of the weapon that matched the pieces of

metal in the parking lot, the record shows that such weapon was not

located until February 18, 1975, the day that the trial commenced. Hence,

this testimony was not available to the prosecution until the day of

the trial. The prosecution need not discontinue its quest for evidence

because discovery has been supplied or the trial is comnencing. There

was no request for a continuance and the defense Vearned of ~ testimony

fairly promptly. The trial court acted within its discretion in over-

ruling defense counsel's objections to that evidence. Assignment of error

number two is overruled.

The third assignment of error is that the trial court improperly

Overruled the defendant's motion for a mistrial, claiming that the trial

court failed to protect jury nembers against prejudicial trial publicity.

The record shows that defense counsel, at the commencement of

the procecdings, the morning after the jury was impaneled, brought to the

court's atiention a news article, which appeared in a Columbus newspaper

the previous evening, referring to the case. At that time, the trial court

asked each of the jury members individually whether they had read any news

article which was published in the previous day's papers and all answered

in the negative. Again, on the fourth day of trial, defense counsel stated

that the morning edition of a Columbus newspaper had an article on the case,

concerning tapes. A legal intern working for the defense counsel indicated

to the trial court that he had seen two jurors reading the paper, but that

he could not see which article. He also saw a third juror walk into the

-2577-

* No. 75AP-355 24

courtroom with a newspaper under his arm. Once again, the court

indicated to the jury that they were not to read any articles on the {

case, as they had been previously informed on more than one occasion,

and then questioned the jury individually as to whether they had seen

any article dealing with the case. Once again, the record indicates

a negative response.

The procedure of the trial court was proper. The trial court

determined to his satisfaction that his instructions concerning news

accounts of the case had not been violated. No request was made by

defense counsel for further inquiry or instructions. Assignment of

error number three is overruled.

The fourth assignment of error is in regard to the testimony ~~

of Michael Goins. The court called Michael Goins as the court's witness,

telling the jury that anything Mr. Goins testified to in the Weind tria}

Will not be used as evidence against him in any trial in the future.

Appellant complains of two matters. First, appellant complains

that the trial court failed to instruct the jury on “use inmunity"; and,

secondly, that the trial court should not have been permitted to call

Goins as a witness of the court.

The first complaint is that the trial] court failed to instruct

the jury as to "use immunity." The record Shows that the trial court, in

effect, gave this instruction by telling the jury that any testimony that

Goins gave could not be used as evidence against him in any other action.

There was no objection to this statement or request for a more specific

-2578-

-_, ae ‘aah - <<, ve pee NS”

a Api, kK om Sais > BOE wea ee ee ae, Anat tae + 50 OS ee” re yet fee tint tet s

wae — why Pe ated ~~ > fre "we “ip! aN a aon. wt, ar li we ee we oy -- ee Ve. . se

Pa rpetn oe Pasi “Nat Poe pM ast Beets Getln goo teh “0.4 Seen W>,. 0° Sut sw Pg Sandy Sen

affect

No. 75AP-355 25

“use immunity" instruction. Crim. R. 92 (A) requires this court to

disregard any error, defect, irregularity or variance which does not

Substantial rights. Crim. R. 52 (B) permits only plain errors

or defects affecting substantial rights to be noticed when not brought

to the

; , } ;

attention of the trial court. The error herein does not affect

Substantial rights and must be disregarded.

The second objection is to the trial court's calling Goins as

its own witness. While the trial court may not take the role of an

advoca

te, it is certainly within the tria] court's prerogative to cal]

a person as a court witness when that individual possesses knowledge

material to a just determination. Frequently, both parties have reasons

for not wanting to call a witnes » although the testimony is important.

As indicated in an authoritative annotation:

“The authority of a trial judge to call a witnes

in a criminal prosecution as the court's witness

on its own motion or at the request of one of the

parties has been recognized in all jurisdictions

in which the question has been considered. "

see 67 A.L.R. 2d 538, “Courts witnesses (other than expert) in

criminal prosecution."

The fifth assignment of error is that the trial court failed t

instruct the jury to disregard all testimony regarding alleged tape recordings

between witness Boswell] and witness Goins,

would not be admitted into evidence.

after ruling that the testimony

-2579-

ne’

. . “a*s . a a

J . + oe a > rn OS Ng ange tng, Pl te ON Sy OTN, ee Ye Mi #

. ‘ om oe ata®*> *& ~* ag tO Dnt dg on Og, army HNO, 8 te eR yee

as ae a ee ee ee ee NS Me CTR i eet FO a owen gt IRIE wee fh we>:, ern . yi. -

2 ~ > eet: = a - , ae ee ce “~ oe Mey stem, . . “ wes “Ss ame 4 * S-—-

** AOS os? . . » xy ‘ty Meta aN ie ot te

ed _-.,. ?

~ _ 7 va » . , e . a ,

“~~ “tie” * “* anh the » £9 . oP ae > oe “ > 47 ow . —

.** ~* - Py Po K, - ~~ " pwd P re a ~ a, ~ toe - Now * ~ N os “ae “f A *~e.’ ra Fae, 7 om y

~~" . ’

> at oes"

: No. 75AP-355 26

The record shows that the irial court ultimately sustained

objections to the admissibility of the tape recording without permitting i

the substance of the testimony to be heard by the jury, although there

was preliminary testimony about the tapes. When the court conclusively

ruled the tapes would not be admitted into evidence, there was no admonish-

ment to the jury to disregard any testimony they heard about the tapes.

No request was made for this instruction by defense cuunsel and no request ‘

for instruction was made at the conclusion of the trial court’ S charge to

the jury.

Once again, Crim. R. 52 (A) permits this court to consider errors

which were not raised at the trial court by proper objection only if it

is a plain error affecting the substantial rights of the defendant. The

error, if any, regarding the Lapes in this case was not of that deyree.

Assignment of error number five is overruled.

The sixth assignment of error is that hearsay testimony was

admitted, denying defendant his right to confrontation and due process

of law. Two witnesses, Kay Osborne and Zebby Zweydorff, testified that

Carl Osborne (codefendant separately convicted of the same charges) came

into their room the morning of the murder and said that he and appellant

were going to get something to eat and were using Kay Osborne's car, the :

car ultimately identified as the murder car. Defense counsel objected

to this testimony and the trial court issued a written ruling, overruling

the objection on the basis that there was ample evidence tu establish,

prima facie that a conspiracy existed between Car] Osborne, Alberta Osborne

and the defendant. um

-2580-

a ine sited Sh Nal a eee

‘ _ “ rod ~ Ye eter oe, wy ie 7 og ovisy,! Sra alae res Vie y. *y fee eo ON we - RS viet a ~~ “ ne one 7

. en ~~ 3° * ig tol = Ro« ~ + “A = Be - tan Sie! pane < ‘as, i eteey ‘ ves a ray

a SP a Ne gated Siceeh Die Pu towgtese aes oem NT IE NE OL OD Rin LP etna pao

* * No. 75AP-355 27

An exception to the hears, ile exists for statements of

- coconspirators under rationale developed froin partnership law that the

‘

Statement of one coconspirator made in furtherance of the conspiracy is

admissible against a Coconspirator, This exception is Summarized as

follows:

Any act or declaration by one coconspirator

committed in furtherance of the conspiracy and

during its pendency is admissible against each

coconspirator provided that a foundation for

its admissibility is laid by independent proof

oF the conspiracy."

72 Harvard Law Review 922 » t 985 (1959),

Both the United States supreme Court and the Ohio supreme Court

have recognized the need for independent proof, or proof aliund

prerequisite to admissibility. Glasser v. Uns bed Statea (1942), 315 U. S. 60 ;

olate v. Carver (1972), 30 Ohio St. 2¢ 280,

P ihe trial court, by its ruling, demonstrated Liat it understood

the rule and the necessity of proof of prima facie evidence that a conspiracy

existed prior to admissibility of the declarations of

a Conconspirator as

an exception to the hearsay rule. A review of Lhe record indicates that the

trial court ruled correctly, in that previous evidence by witnesses Boswell,

Goins and Lowe provided evidence aliunde that appellant was engaged ina

conspiracy with Carl Osborne to Kidnap and kill the decedent. Assignment of

error numoer six is overruled.

The cighth assignment of error is that the court improperl) sub-

mitted two specificationsof aggravated murder to the jury. In other words,

the jury was permitted to consider and to find appellant guilty of both

~2581-

° ‘ + os ‘ Ls oo 4

*\ . fal ws y -* e ees. . ‘e ° ?

ews Be oft at * al aA ee ow ” eo a . yy ” “teow ww, . aran Vs > ‘ ‘ , ‘

e -. x ew * ae . . , ‘ . ,

® ’ . ‘

. : ** - —- ~* “ “wer wa 7

em « YY ytwAs, sé ~s A New a Ce ea te Oe Pe ee ie lie is ww » ve or, y* “as

fay e\ee ee te es " ae 1” me Pog Syne pre Sets - a, ancy hy Ae” 7 7 ors oy: en” veep, o hat

. ~

. 4, a whe . ee a " ‘

~~ a ay a. ot ee Petes i, @ Yectgh. 00'S WOR od. bit ie a eT ee ae ee ee ve NESS re een’

oe Dee ok a ee >. “T ,

\ No. 75AP-355 28

murder for hire and murder while c: tting a kidnapping offense. As

we have previously held, in State v. Fluellen, unreported case number

74AP-138 (1974 Decisions, page 1920), it is proper to submit both of

the counts to the Jury. Of course, when only one murder is involved,

. the defendant can only be sentenced for a single aggravated murder

Assignment of error number eight is overruled,

The ninth assignient of error is that the trial court refused

to charge the jury on the lesser included offense of obstruction or justice

and improperly recharged the jury on aggravated murder

After the jury began its deliberation it requested, on two

Occasions, the rereading of testimony of certain witnesses. Thereafter,

on the second day of deliberation, the jury requested the court to Clarify

the charge of aggravated murder by prior calculation and design. Over

objection of defense counsel » this charge was replayed,

It is within the discretion of the court lo replay certain

portions of the trial testimony on to repeat portions of the charge as

. requested. The record does not discluse an abuse of discretion.

Moreover, the trial court did not err in refusing to charge on

obstruction of justice. Obstruction of justice is not a lesser included

offense of the charge of aggravated murder

Appellant's assignments of error are overruled and the judgment

of the trial court is affirmed.

STRAUSBAUGH, P.J., and REILLY, J., concur.

~2582-

, wee’

» i ie hele . mA ’, ‘

ere 1 7 ‘ . - “4 hg aire ORS. mn Mis hes as we ae “108 ’

ayes a) nt. eae ee he Ne Sie . Nee ht . Fv oe, Pure se J

Pe 4 eye oe ray ~ 7 gt RON - \ oe wy *> ~ "« ~ san tpl . “ poms ¢ a Pat A

db daanh od

’ , of ia . Mad 9 “% “ >” ree Se ee a + Meh ve Fe yaton a

ah <NTS, ens ~e ° a es yy sy Pep 1 Te Ma,” *. Te tes. AM Tw, “~

APPENDIX E

LN THE COURT or COMMON I'LIkAS OF FRANKLIN COUNTY, OHIO,

CRI, \L DIVISION

nay ol 4 State or Unio,

: 5 || Plaintire,

6 | VS

| , ' Case No. (0CR-12-3104

7 | Dennis C. Burke,

8 Defendant.

10 | EXCERPTS OF PROCEEDINGS

-~ - |

12 | Taken before the Honorable Fred J. onoemaker,

13 Judge, Court of @, mnon

Pleas of Franklin Vounty, Unlo, under

ld Gate of February }!

16 APPEARANCES:

17 Mr. Gerald Todaro, Assistant Prosecuting Attorney,

18 | “nN benalf of tne Plaintife, state of Unlo,

19 Mr, Gary M, Setnwe lekart and Mr, Thomas Vivyan, |

20 VN benallf of the Defendant, Hennis C, Burke. |

2) » 6 « |

VFFICIAL COURT REM MTOCRS

recvee

‘ ‘ COLUMBUS, OMIO 45215

PRANKLIN COUNTY

‘6O'4) 462 3300

. oe ’ Pat el

iow! . AOA OD we OER E> 4g ae ’ ert \ a , rN AY - ~

’ ° / ‘ ’

’. wes* Sao i . ~-* yet ~ - mire! ‘ »' d + - o ’ “~«

»* Meo , e sd - . ae “ e."5 . °

4 V/ oe + . , mea TT ¥@ ,

. , a =

." . *. ‘

APPENUX @

Tuesday Afternoon Session

February 15, 1977,

WILLIAM LAZAROW

Called as a witness on benalf of tne Defendant, naving been

first duly sworn, testified as follows:

P MR, SCHWEICKART: 1f I may, Your Honor, I think to

help focus tnlings, and I'm sure for tne Prosecutor, because

ne doesn't know wny I called Mr, Lazarow, to give Just a

brief statement as to -- in tne way of an opening Statement,

With respect to Mr. Lazarow's testimony on tnis motion, if

Il may,

THE COURT: Why don't you just ask nim. I tnink

we'll figure it out,

MK, SCHWEICKART: Okay, very good,

DIRECT EXAMINATION

By Mr. Scnwelickart:

&. State your name, please?

A. William Lazarow.

Q. And wnat is your occupation, sir?

A, I am an attorney, My office 1s located at 16 Kast

Broad Street, Columbus, Onto,

OFFICIAL COURT HEPONRTERS

COLUMBUS O10 45215 need

‘o'4) 4627-3990

peAti OOF OM tree

FRANKLIN COUNTY

)

* , . 2 one .

pd wr = AON reg es. a ™ ~~ An

Me - ? he _~ 4. oars wre? ; * OE phe No 7 a ‘ ~*~ Js Po Pa -, "ey . ae ‘

wate,

x vada

4 ates 5 eh A a pat a tet pete tN s ey, >. i 0) ay .

"ty ll -

- aie rh: awe oi yc

” * | *

: ‘ PY

| %. Mr, Lozarow, ve; ‘cently nave you nad an

2 , 5 . . ee z .

Opportunity to be represe, 6 @nyone charged witn a capital

A. Yes, I was appointed, recently, to represent

ote

| offense?

}

(ea)

Mr. James Lockett ln Summit County, tne cause Of State of

6 OUnlo versus James Lockett

&. Now, with respect to your representation of

Mr, Lockett -- this is a C4épital case in tne estate of Onio?

A, Tnat is correct,

V YW, Okay, NOW, were Lnonere any Cod: fendants on that | ,

‘ ’ } .

, Ny | case? |

— ‘ |

2 |} A. Maybe ] Should glve just a Little bUcKKround,

IJ A] we ai { di |

'4 A, Mr, Janes Lockett Was one of four individuals

= 1d || Chérged in a felon murder case wnicn 8rose in January of

0 |

16 1975 in Akron, Onlo.

7 THE COURT: Isn't that tne case tnat just came out

18 in tne O., bar?

19 THE WITNESS: Tnat's correct.

20 ] THE COURT: And ] "nink the Gay arter it came out

2) | I was talking to you or tne da -- 1 remember you were «-«

? 7 J

é2 MR. SCHWEICKARY: You were Valking to me, I believe,

23 | THE COURT: Was it you?

\ | .

24 ! THE WITNESS; [ don't tnink J] nad any conversation

25 || Witn you,

UPFFICIAL eFC HT REPORTERS

COLUMUUS, OIG azzi6 meet eres

| HANKLIN GOUNTY O14) 462.3900

fw ]

a |

eet . ]

“"; , ’ THE COURT: I ki about tne C48@; it's a reported

O : case,

ae ’ THE WITNESS; There were two cases reported tne 1 tel

; ' r¢ “b

vo 4 Same day. James' case was reversed, He nad been convicted

rv ’ 8nd given .-. Sentenced to the deatn penalty, Hig Sister,

| b Sandra's case was affirmed on tne same day. She also nad

i. y been sentenced to death. Sy

~~ :

Uy) ° 4 . . 7

a Q. (By Mr, Scnweickart ) Okay. Now, nas tne case of

James Lockett been remanded for new trija)?

10 A, Yes, it nas,

oe NM Q. Now, recently, and using recently, let's take you

Al's, "ye

. 12 back to the events of yesterday, being February 14, 1977,

IJ | ld you nave tne occasion to engage in any plea bargaining

4 Witn representa tives of tne Prosecution for the Sta Le of

5 Onio on tnis case?

16 A. Yes, I did. We did nave a hearing yesterday

7 morning ln Akron. At tnat time I met Mr, Kirkwood of tne

aN 18 Prosecutor's Office in Summit County wno inforned me tnat ne

: | W8S tne cnief trial counsel tnere, We dig nave Some dig-

20 CuSSlons on POSSibly resolving tne Case Shiort of trial; and

2! ne did come up witn a proposal,

22 “%. Can you tell tne Court wnat tne proposal was?

a3 MR. TODARO: Judge --

h r

Ae 24 THE COURT: 17 don't see now it's relevant.

25 MR, SCHWEICKART: Your Honor, that's wnat I Say, if

OFFICIAL ¢ OuNnT ty PONTE HG

00s. menace COLUMBUS, OMIO adais ees ain a2e0

FRANKLIN COUNTY

‘

i .

mar, Patt Hee

Lien, “ C the (paver tees “pat 7) ta trons “i mn en , Ky ee MS ae Ne Raa labs

. a a ee on yA entry + aa Li ete ’ Vf. . - * yb ie my 4m,

notte VEN Taare tipds SEY Ke it PS alee Nhe tM Sie Me ron

mow. ee Meta - by ad Lv Petee' i “\ . ~ Pale " @ads

oo - bf . ’

I nad an Opportunity to -

THE COURT: Take, fer the answer, l don't see

now it's relevant, but answer it for tne record, P

= S . Mee

‘ai ‘ | MR, TODARO: Note my objection.

° } THE WITNESS; lt was suggested tnat we plead

}

¢ || Mr. James Lockett, wnose case Was remanded, guilty to

i im | ps 4

t', | 1

its

2 y | aggravated murder; tnat tne deatn specifications would be “°

| ee

S| |

‘ | oa

8 | Cropped; and tnat tne Prosecutor's Office would nave a ee

y | in Sandra's cose, it be brougnt back to tne Court Lnroughn a

10 | post-convictlon action, nave ner conviction not reversed, but

'L | | vacate ner conviction and nave ner also plead guilty to

* 12 | 8G66ravated murder witnout the Specifications, tnereby taking

3 ner off of death row where sne now lg,

id 50, in effect, tney offered to nave Mr. Luckett

‘.," 15 } Plead guilty to murder witnout Specifications; tnen nis

a ‘

16 | Sister, wnose case nad been affirmed by tne Onio Supreme

7 | Court, would tnus be Vaken off of deatn row and nave the

’ 8 |) =deatn penalty removed from ner nead,

‘ | Pe

9 “. (By Mr, "CNwelckart) In otner words, to use the

an |i | ,

) | =prosecutorial Ciscretion representing tne State of Onlo, the

Z| Summit County people, in *SSence, offered to not to kill

22 | James Lockett's sister if ne would plead guilty to aggravated

| i] ,

. 23 |; murder, 18 tnat correct?

24 | A, That was my unde ‘Standing.

25 | Ww. And to your knowledge, was any of this negotlation

| VFPFICIAL COUNT ly PORTERS

ef COLUMUUE. Oni 45215 ee |

| FHANALIN COUNTY ‘@'4) 462.3300

. o s oe _*

, 4° . » oh ew 4 ee et he de Lew et. |

S.C a es glad nae aa Pee “~ tees Nr. OS pNP ig? Yoo Sony s ay; Ne A pg Pal yh

‘ “os U.P’ Ye . Ma ’ wy “im ~~ ean he. oie ot? a aA, 8, ‘eX ~ ; Z ie. ye

vig) ghe ir Py “a s 4 id ~\ ~/ i as . we eed”, * we P A _* “ne P -. | ie ." *, * eT ”

so tft nt net ys P ‘ie kl Wel as a tll Wael . ail

ie ofa Plt ai > a‘ ¢ ote &

? *-*

ee jaa . Subject to judicial approyvi|?

Cl 2 A. Mr. Kirkwood indicated tnat, wnen I asked nim,

nore 3 inquired into tne metnod by wnicn this. would be done, the

yall 4 metnod by whicn Sandra's plea would be vacated or Sandra's

. 5 conviction, ne indicated that ne nad nad no trouble with

p 6 this in tne past, tnat tnere were different methods by

ee ha 71 which tnis could be done. : f, Noe

a 8 We did nave a brief conversation witn tne Judge

: 9 on the case, Judge Barbuto, and he indicated in this case

10 that anytning we agreed along tnis line ne would gO along “ie

tad 12 Q. In other words tnen, or if I'm correct, Mr. Lazaraw,

13 | that the State was discussing sparing an individual wno nad

14 been convicted in tne State Court process, nad been not

6 15 found to be any mitigation in tne State Court process, was,

- : 16 Sentenced to deatn in tne State Court process, and nad tne

7 Sentence of Gd th affirmed by the nignest court in tne

rs 18 State of Onio, tnrougn the venicle of prosecutorial discre-

19 tion was offering life to tnat individual tnrougn a plea

20 | bargain witn a Codefendant; is tnat fair?

21 A. Yes, tnat's basically correct.

22 MR. SCHWEICKART: Tnank you,

. 23 o- ©

at Pee

" . pave tay ty aaa nae

HALL OF JUSTICE UMBUS. OMIO 4321 PHONE

FRANKLIN COUNTY 1614) 462-3390

— 86

siti meted wees PROTO” SPE RQ ETO SIO

“se, Phd ery Fn as eS Matyas wk I OFS BE hen at ae ES OOS OS ed a ee

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