Petition — Osborne v. Ohio

Supreme Court brief1978

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IN THE

SUPREME COURT OF THE UNITED STATES

October ferm, . 77

0-97-5826

CARL E. OSBORNE, JR.,

Petitioner,

Vv.

THE STATE OF OHIO,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF OHIO

CARL T. WOLFROM

Suite 1060 -

ATTORNEY FOR PETITIONER

GEORGE C. SMITH

Franklin County Prosecutor

Hall of Justice

369 South High Street

Columbus, Ohio 43215

ATTORNEY FOR RESPONDENT

[FB too

| FILED |

DEC 3 1977

Lawes. ROA, Lem

IBM Building

140 East Town Street

Columbus, Ohio 43215

CITATIONS TO OPINIONS BELOW ..... ccc eeceeece cece eeeeeeeeeeeeeeeeenes

JURISDICTION wn cccccccccccccccscccccccccccccccccccccececcecesooccese

QUESTIONS PRESENTED ..ncccccccccccccccccccccsececccccccceseccecccece

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ......cceeeeeeeeees

~~ Ww

Il.

Ill.

IV.

THIS COURT SHOULD GRANT CERTIORARI BECAUSE THE

PROSECUTOR USED PETITIONER'S PRE-TRIAL SILENCE

FOR IMPEACHMENT PURPOSES, THEREBY VIOLATING

PETITIONER'S RIGHT TO DUE PROCESS OF LAW

GUARANTEED BY THE FOURTEENTH AMENDMENT, AND

HIS PRIVILEGE AGAINST SELF-INCRIMINATION

GRANTED BY THE FIFTH AMENDMENT TO THE UNITED

STATES CONSTITUTION ...... PPVETTTITITITITILI LTTE T Tree

THIS COURT SHOULD GRANT CERTIORARI TO DETERMINE

WHETHER THE PROSECUTOR DENIED PETITIONER HIS RIGHT

TO DUE PROCESS OF LAW GUARANTEED BY THE FOURTEENTH

AMENDMENT BY INTRODUCING HEARSAY TESTIMONY THROUGH

THE MOUTH OF THE PROSECUTOR UNDER THE RUSE OF LAYING

A FOUNDATION FOR IMPEACHMENT, WHEN SUCH IMPEACHMENT

EVER FELLGIED wc cccccccccnccccccccccceccescocececosesceseese

THIS COURT SHOULD GRANT CERTIORARI BECAUSE THE

PROSECUTION VIOLATED PETITIONER'S FIFTH AND

FOURTEENTH AMENDMENT RIGHTS TO FACE AND CROSS-

EXAMINE EVERY PERSON OUT OF WHOSE DECLARATIONS

THE STATE SEEKS TO CONDEMN HIM .....ccceeecceeeeeescceveecees

THIS COURT SHOULD GRANT CERTIORARI TO CONSIDER

WHETHER THE STATUTORY SCHEME OF GRANTING THE DEATH

PENALTY PURSUANT TO SECTION 2929.04 OF THE OHIO REVISED

CODE IS INCONSISTENT WITH THE PROHIBITION AGAINST

CRUEL AND UNUSUAL PUNISHMENT OF THE EIGHTH AND

FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE

UNITED STATES .cccccccccccccccccvccccscccccocesececocccescees

THIS COURT SHOULD GRANT CERTIORARI TO DETERMINE

WHETHER THE OHIO PROCEDURE FOR IMPOSITION OF THE

DEATH PENALTY AS SET FORTH IN SECTION 2929.04 OHIO

REVISED CODE DOES NOT MEET THE REQUIREMENT OF THE

DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT

THAT THE PROSECUTION MUST PROVE BEYOND A REASONABLE

rons EVERY FACT NECESSARY TO CONSTITUTE THE CRIME

CHARGED on. cccccccccccccccccccsccccscsseccecececsccescecesonce

ines

Page

VI. THIS COURT SHOULD GRANT CERTIORARI TO DETERMINE

WHETHER PETITIONER'S FOURTEENTH AMENDMENT RIGHT

TO DUE PROCESS OF LAW WAS VIOLATED WHEN HE RECEIVED

THE DEATH PENALTY PURSUANT TO SECTION 2929.04 OHIO

REVISED CODE WHEN AN AGGRAVATED CIRCUMSTANCE PERMITTING

A DEATH PENALTY SENTENCE WAS NOT PROVED BEYOND A

REASONABLE DOUBT .nncccccccccccccccccccccccccccccccccceccces 20

VII. THIS COURT SHOULD GRANT CERTIORARI TO DETERMINE

IF PETITIONER'S RIGHT TO A FAIR AND IMPARTIAL JURY

AS GUARANTEED BY THE SIXTH AMENDMENT TO THE CONSTI-

TUTION OF THE UNITED STATES WAS VIOLATED BY THE

COURT'S FAILURE TO GRANT A MOTION FOR A CHANGE OF

VENUE WHEN A COURT ORDER, ISSUED iN LIEU THEREOF AND

DESIGNED TQ DIMINISH PRE-TRIAL PUBLICITY, WAS DIS-

GEE cccccesdccccces secccsncdenccccessodeceececebeonseseees 21

GRAIG cc ccccccccccccccdtccccccccccecsccnscececcccccecccecocece 24

CERTEPEGATE GF SERUTEE ccc ccccccccccccccccscessccccevccnccncccsess 24

APPENDICES:

A. Opinion of Ohio Supreme Court ......cccececccccccceceveceeee 25

B. Judgment Entry of the Franklin County, Ohio, Court of

FED 066006656 600606665 5600000066060606 be decdeecsaccesece 38

C. Opinion of Franklin County, Ohio, Court of Appeals ......... 39

D. Judgment Entry of the Franklin County, Ohio, Court of

COMBA PIGRS cccccccccccccccccccccccccccccececccccecoccecoes 57

E. Jury Summons, Franklin County, Ohio, Sheriff's Office....... 59

F. Order of the Supreme Court of the State of Ohio ............ 60 |

G. Mandate of the Supreme Court of the State of Ohio .......... 6)

H. Stay of Execution from the Supreme Court of the State of | 7 ae

GTO cccccccccccesecccccccecccccccccecceccn cece ccoccssecses 62 |

I. Order upon Reconsideration from the Supreme Court of the

SERCO OF GHIO cccccvvccccccvccccccccescccsccccccecceeccceces 63

ii.

| TABLE OF AUTHORITIES

}

CASES Page Nos. —

Arizona v. Greer, 17 Ariz. App. 162, 496 P. 2d 152......cccc cc ecece 10

Doyle v. Ohio, 96 S. Ct. 2240, 2244, 2245 (1976)............ 2, 10, 11, 13

Forsythe v. State, 12 Ohio Misc. 99 (1967)...........005. Sabscliilie 22

| Fowle v. United States, 410 F. 2d 48 (9th Cir. SS Pree 10

| Gregg v. Georgia, 96 S. Ct. 2909, 2923, 2936 (1976)........cecucess 14, 16

|| In re Winship, 397 U.S. 358 (1970). ..cccccccccccccccccccccccceccee. 17, 18

} Jurek v. Texas, 96 S. Ct. 2950, 2956-57 (1976)......cccececcceucece 14, 16

|| Miranda v. Arizona, 384 U.S. 436 (1966).......sceeeeceeeeeeceeeeeee 10

| Mullaney v. Wilbur, 427 U. S. 684, 689, 691, 698 (1975)........00.. 17

i Newspapers v. Phillips, 46 Ohio St. 2d 457, 466 (1976)............. 22

| Patterson v. Colorado, 205 U.S. 454, 462 (1907).......cccecccecuece 23

| People v. Bobo, 390 Mich., 355, 212 N.W. 2d 190 (1973)........ccce. 10

Pointer v. Texas, 380 U.S. 400 (1965)..... cc cece cc ccc cece ccccucccce 13

Profitt v. Florida, 96 S. Ct. 2960 (1976).......cccecucecucucucucee 14

Roberts v. Louisiana, 96 S. Ct. 3001, 3006 Eee ae 14

| State v. Good, 110 Ohio App. 415 (1960)......c.cescseceuceeceveeucs 16

| State v. Osborne, 50 Ohio St. 2d 211 (1977)... .ccccecceueccueceucee 1, 25

|| State v. Stephens, 24 Ohio St. 2d 76 (1970)... .. ccc cece cece ace ceece 10, 13

| State v. Tahash, 148 N.W. 2d 557 (Minn. 1967).......ccceceuecs cnees 10

| Thompson v. City of Louisville, 362 U.S. 199 (1960)......ccceceucee 20

| United States v. Brinson, 411 F. 2d 1057 (6th Cir. 1969)........... 10

United States v. Nolan, 416 F. 2d 588 (10th Cir. 1969)............. 10

Woodson v. North Carolina, 96 S. Ct. 2978, 2990, 2991 (1976)....... 14, 16

}

| iii.

LLL eee ee

| Table of Authorities (Continued)

CONSTITUTIONS

Constitution of the United States:

PEE © GNwecncdavsueudenes 6beddcckenecdewctedeecccce< 2, 3, 12, 13

FUNEE OW 484 beebendsueddbedsdénbevecseccdseccccendenes 2, 3, 13, 21

PIT. WEEE Woceewndennenshecceeduuass ccdvesucoscewecnetcces 2, 3, 14

Amendment XIV ...ccccvccccees TIT TTT TT 2, 3, 10, 12, 13, 14, 17, 18, 20

STATUTES

Florida Statute Ann., Section 921.141 (6) Supp. 1976-1977)............ 15

Ohio Revised Code, Section 2901.12........ccccceccecccccccecevceucncs 2)

Ohio Revised Code, Section 2903.01.........ccccccccuceccccuccecevevees 3, 7

Ohio Revised Code, Section 2923.03.......scscecesecesecceecevcecuenene 3

Ohio Revised Code, Section 2929.02.........ccccccccecceccccececeuevees 3

Ohio Revised Code, Section 2929.03........cccccccccececccccuunecceccce 3, 19

Ohio Revised Code, Section 2929.04..........cccceee 2, 5, 14, 15, 17, 18, 20

ep ane, HUETE TEE Gis cncesnscscvecéddncenesdececesdutduccsedses 1

ee Ns nsUadns chs naduaedésedadeben codcwudtes ekawtdédadseceties inns 6, 2)

SEE CP indns canned ind binwkacn dudau tii dea ddaleudes bickéde de mikes 6

iv. , |

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1977

eee a e-—— —OOEe s Ee

No.

CARL E. OSBORNE, JR.,

) Petitioner,

4 | V.

THE STATE OF OHIO,

‘ Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF OHIO

nee

Petitioner prays that a writ of certiorari issue to review the

judgment of the Supreme Court of the State of Ohio entered June 22, 1977,

lrehearing denied July 8, 1977.

CITATIONS TO OPINIONS BELOW

The opinion of the Ohio Supreme Court is reported at 50 Ohio St. 2d

211 (1977) and attached as Appendix A.

JURISDICTION

Jurisdiction of this Court is invoked under 28 U.S.C., Section 1257(3).

petitioner having asserted below and asserting here deprivation of rights

secured by the Constitution of the United States.

i A ee At ey AN lt

, woes Se

—_—

QUESTIONS PRESENTED

Whether the prosecutor, contrary to this Court's holding in

Doyle v. Ohio, 96 S. Ct. 2240 (1976), violated petitioner's

rights under the Fifth and Fourteenth Amendments in cross-

examining petitioner as to why petitioner waited until his

trial to reveal his facts through his testimony when he had

— opportunities" to reveal his true facts prior to

trial.

Whether the prosecutor denied the petitioner his right to due

process of law guaranteed by the Fourteenth Amendment by

introducing hearsay testimony through the mouth of the

prosecutor under the ruse of laying a foundation for

impeachment, when such impeachment never followed.

Whether the prosecutor violated the petitioners Fifth and

Fourteenth Amendment rights to face and cross-examine every

person out of whose declarations the state seeks to condemn

him.

Whether the statutory scheme of granting the death penalty

pursuant to Section 2929.04 of the Ohio Revised Code is

inconsistent with the prohibition against cruel and unusual

punishment of the Eighth and Fourteenth Amendments to the

Constitution of the United States.

Whether the Ohio procedure for imposition of the death penalty

as set forth in Section 2929.04 Ohio Revised Code does not meet

the requirement of the Due Process Clause of the Fourteenth

Amendment that the prosecution must prove beyond a reasonable

doubt every fact necessary to constitute the crime charged.

Whether petitioner's Fourteenth Amendment right to due process

of law was violated when he received the death penalty pursuant

to Section 2929.04 Ohio Revised Code when an aggravated

circumstance permitting a death penalty sentence was not

proved beyond a reasonable doubt.

Whether petitioner's right to a fair and impartial jury as

guaranteed by the Sixth Amendment to the Constitution of the

United States was violated by the Court's failure to grant a

motion for a change of venue when a Court order, issued in

lieu thereof and designed to diminish pre-trial publicity,

was disobeyed.

—_— + oe - ee

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

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

to the Constitution of the United States.

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

Ohio Rev. Code Ann. Sec. 2903.01 (Page 1975). Aggravated

murder.

(A) No person shall purposely, and with prior calculation

and design, cause the death of another.

(B) No person shall purposely cause the death of another

while committing or attempting to commit, or while fleeing

immediately after committing or attempting to commit kidnapping,

rape, aggravated arson or arson, aggravated robbery or robbery,

aggravated burglary or burglary or escape.

murder, and shall be punished as provided in section 2929.02 of

the Revised Code.

Ohio Rev. Code Ann. Sec. 2923.03 (Page 1975).

Complicity.

(A) No person acting with the kind of culpability required

for the commission of an offense, shall do any of the following:

* . *

(2) Aid or abet another in committing the

offense.

* - 7

(F) Whoever violates this section is guilty of compiicity

in the commission of an offense, and shall be prosecuted and

punished as if he were a principal offender. A charge of

complicity may be stated in terms of this section or in terms

of the principal offense.

Ohio Rev. Code Ann. Sec. 2929.02 (Page 1975).

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 determined 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 ——

five thousand dollars.

* * *

Ohio Rev. Code Ann. Sec. 2929.03 (Page 1975).

Imposing sentence for a capital offense.

(A) If the indictment or count in the indictment charging

aggravated murder contains no specification of an aggravating

circumstance listed in division (A) of section 2929.04 of the

Revised Code, then, following a verdict of guilty of the charge,

the trial court shall impose sentence of life imprisonment on

the offender.

(B) If the indictment or count in the indictment charging

aggravated murder contains one or more specifications of aggra-

vating c’rcumstances listed in division (A) of section 2929.04

of the Revised Code, the verdict shall separately state whether

the accused is found guilty or not guilty of the principal

charge and, if guilty of the principal charge, whether the

offender is guilty or not guilty of each specification. The

jury shall be instructed on its duties in this regard, which

shall include an instruction that a specification must be proved

beyond a reasonable doubt in order to support a guilty verdict

on such specification, but such instruction shall not mention

the penalty which may be the consequence of a guilty or not

guilty verdict on any charge or specification.

aggravated murder contains one or more specifications of aggra-

vating circumstances listed in division (A) of section 2929.04

of the Revised Code, then, following a verdict of guilty of the

charge but not guilty of each of the specifications, the trial

court shall impose sentence of life imprisonment on the offender.

If the 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 a 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 evidence, the statement, if any, of the

offender, and the argument, if any, of cousel for the defense

and prosecution, relevant to the penalty which should be imposed

on the offender. If the offender chooses to make a statement,

he is subject to cross-examination only if he consents to make

such statement under oath or affirmation.

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

evidence, statement of the offender, and arguments of counsel

submitted to the court pursuant to division (D) of this section,

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

finds that none of the mitigating circumstances listed in division

(B) of section 2929.04 of the Revised Code is established by a

preponderance of the evidence, it shall impose sentence of death

on the offender. Otherwise, it shall impose sentence of life

imprisonment on the offender.

oe cee en = + =

—

Ohio Rev. Code Ann. Sec. 2929.04 (Page 1975).

Criteria for imposing death or imprisonment for a capital

offense.

(A) Imposition of the death penalty for aggravated murder

is precluded, unless one or more of the following is specified

in the indictment or count in the indictment pursuant to section

2941.14 of the Revised Code, and is proved beyond a reasonable

doubt.

(1) The offense was assassination of the president

of the United States or person in line of succession to

the presidency, or the governor or lieutenant governor of

this state, or the president-elect or vice-president-elect

of the United States, or the governor-elect or lieutenant-

governor-elect of this state, or of a candidate for any of

the foregoing offices. For purposes of this division, a

person is a candidate if he has been nominated for election

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

accerding 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 detention, 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 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 kidnapping, rape, aggravated arson, aggravated

robbery, or aggravated burglary.

(B) Regardless of whether 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 death

penalty for aggravated murder is precluded when, considering the

nature and circumstances of the offense and the history, character,

and condition of the offender, one or more of the folluwing is

established by a prepondance (preponderance) of the evidence:

(1) The victim of the offense induced or facilitated

it.

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

committed, but for the fact that the offender was under

duress, coercion, or strong provocation.

(3) The offense was primarily the product of the

offender's psychosis or mental deficiency, though such

condition is insufficient to establish the defense of

insanity.

Ohio Rule - Criminal Procedure - 18. (Page 1975)

Venue and Change of Venue

7 * *

(B) Change of venue; procedure upon change of venue.

Upon the motion of any party or upon its own motion the court

may transfer an action to any court having jurisdiction of the

subject matter outside the county in which trial would otherwise

be held, when it appears that a fair and impartial trial cannot

be held in the court in which the action is pending.

* + *

Ohio Rule - Criminal Procedure - 52. (Page 1975)

Harmless Error and Plain Error.

* * *

(B) Plain Error. Plain errors or defects affecting

substantial rights may be noticed aithough they were not brought

to the attention of the court.

STATEMENT

On December 15, 1974, Mrs. Ross was abducted in the parking lot of

an Ontario Supermarket on Morse Road. There was no eyewitness identification

| of her abductors. The victim was taken to an abandoned schoolhouse in

Delaware County, Ohio, where she was murdered. Mrs. Dorothy Hale, a property .

owner residing near the schoolhouse, testified that on the morning of the

murder she noticed two men and a woman go into the schoolhouse, that after a

| Short time the men came out and drove away. (Tr. 88) She was unable to

| identify either of the two men. Her son, Wayne Hale, testified that the two

} men were approximately six feet tall (Tr. 108) and that the slightly taller of

| the two men was stockier. This description does not fit Car] Osborne, Jr.,

| who is stocky and approximately 5'7" tall; shorter than the co-defendant James

| Weind, who is about 5'11" and weighs between 130-140 pounds. (Tr. 355)

Petitioner was indicted on the charge of aggravated murder under

§2903.01 Ohio Revised Code. Before his trial, his two co-defendants were

convicted on the same charge, and their trials were attended by a great deal

of publicity. The newspaper accounts identified the petitioner as the "bigger

—

——-

Oe. ae re ee es ere

man" (See Petitioner's Exhibits), and it was clear that the worst criminal was

being saved until last. In actuality, the evidence against the petitioner was

| not So strong as against the other defendants, and their convictions made it

| easier for the prosecution to obtain Carl Osborne's conviction.

The three principal witnesses in the case against the petitioner

- James Westlake, Edward Michael Goins, and Charles Tinon. James Westlake,

;, who had been convicted of a felony on six different occasions including armed

|| robbery, kidnapping, and an assault with intent to kill a police officer, in

|, exchange for Mr. O'Brien's help in serving his parole. (Tr. pp. 274-276)

| Michael Goins, who had been charged with the murder of one young child and the

| felonious assault of another, did not get the deal be was promised in exchange

' for his information (Tr. 350-352), but he had considerable interest in the

= granted to him for his testimony. (Tr. 341) Goins testified that he

identified the petitioner sitting in a car outside his home by peeping out his

}

—_—— ee ee ee

Oe eee mw ow —_——_ ee

— —

———

——

window between 4:00 and 4:30 in the morning. Since James Weind was supposedly

| buying the murder weapon from Goins at the time, this is the only proof of the |

| petitioner's connection with the crime prior to its occurrence. Furthermore,

Goins testified that he was slightly taller and heavier than James Weind.

(Tr. p. 355)

Charles Tinon, who had participated in a gang rape (Tr. pp. 373-374)

testified that he had overheard Carl Osborne telling Paul Brumfield about his

participation in the crime (Tr. p. 371), but he also testified that he thought

| the petitioner was innocent when he first met him. (Tr. p. 375) Perhaps the

possibility of making a deal for himself changed his mind. Before agreeing to

}

| testify against Carl Osborne, Tinon could not make the bond set by the Court.

After agreeing to testify against Car] Osborne, Tinon was released on his own

recognizance; later, he was granted probation.

The jury found the petitioner not guilty of Specification #1 to both

Counts 2 and 3, that is, that the offense was committed while the offender was

committing, attempting to commit, or fleeing immediately after committing or

attempting to commit kidnapping; while inexplicably finding the petitioner guilty

of kidnapping in Count #1. The jury did, however, find the petitioner guilty

of Specification #2 of Counts 2 and 3, that is, that the murder was committed

for hire. The jury's finding on the latter specification was totally unsup-

eee ee | ee ee ee eee. eee eee eee oo

» ported by the evidence.

At the trial, the prosecution introduced absolutely no evidence that

|| Carl Osborne was ever hired to commit the murder of Mrs. Ross. On cross-

examination by the defense, Mr. Ross was questioned concerning possible with-

drawals from his bank accounts during December, 1974. (Tr. p. 195) Michael

Goins testified that Carl's mother was to pay James Weind. (Tr. p. 358) Carl

Osborne testified that his mother told him she had hired two men (Tr. p. 456),

|, that those two men were James Weind and Michael Goins (Tr. pp. 440 and 492),

and that Mr. Ross was involved in the matter financially. (Tr. p. 458) The

prosecution's failure to introduce evidence on this point might be explained

by the fact that the specification of murder for hire was added as an amendment

to the indictment, apparently as an afterthought.

Since the specification of murder for hire was not proved beyond a

reasonable doubt, the petitioner should not have been sentenced to death.

However, he was sentenced to death and now awaits execution in Ohio's Death

Row.

At the sentencing hearing, the two court-appointed psychiatrists

|| testified that after each of them had apparently spent no more than four hours

with the petitioner (Tr. pp. 538, 543), they were able to conclude that the

petitioner was not subject to abnormal coercion or duress. However, Dr.

Stevenson testified that Alberta Osborne had a dominating and strong personality

particularly in her relationship with her son, Carl. The doctor also agreed

that this was somewhat abnormal and cited the fact that Alberta Osborne took

her son to a pediatrician after the commission of the alleged offense as

indicative of the relationship between them. Car] was twenty years old at the

time.

REASONS FOR GRANTING THE WRIT

I, THIS COURT SHOULD GRANT CERTIORARI BECAUSE THE

SOR TERER TRENT PURPOSES, THEREBY VIOLATING |

GUARANTEED BY THE FOURTEENTH AMENDMENT, AND

HIS PRIVILEGE AGAINST SELF-INCRIMINATION

GRANTED BY THE FIFTH AMENDMENT TO THE UNITED

STATES CONSTITUTION.

During his cross-examination of the petitioner, Carl Osborne, Jr.,

and in his closing argument to the jury, the prosecutor in the instant case

referred to the petitioner's failure to relate his version of the events

Surrounding the death of Mrs. Ross before taking the stand on direct

examination. (Tr. pp. 471-474, 493-494, 509) This conduct constituted a

patent violation of the petitioner's privilege against self-incrimination as

held in Fowle v. United States, 410 F. 2d 48 (9th Cir. 1969). (Accord,

State v. Stephens, 24 Ohio St. 2d 76 (1970); People v. Bobo, 390 Mich. 355,

212 N.W. 2d 190 (1973); Arizona v. Greer, 17 Ariz. App. 162, 496 P. 2d 152; |

State v. Tahash, 148 N.W. 2d 557 (Minn. 1967).) This action on the part of

the prosecutor also deprived the petitioner of his right to due process of law

as the United States Supreme Court held recently in Doyle v. Ohio, 96 S. Ct.

2240 (1976). |

In his opinion for the majority in Doyle, Justice Powell pointed out

that post-arrest silence is “insolubly ambiguous" because the police are

required to advise the suspect of his right to remain silent. Doyle, Supra,

at 2244. In addition, he noted that while the Miranda warnings contain no

express assurance that silence will carry no penalties, “such assurance is

implicit to any person who receives the warnings." Id. at 2245. Therefore,

it would be fundamentally unfair and a deprivation of due process to allow the

arrested person's silence to be used to impeach an explanation offered at

trial. See also United States v. Brinson, 411 F. 2d 1057 (6th Cir. 1969) and

United States v. Nolan, 416 F. 2d 588 (10th Cir. 1969).

The Ohio Supreme Court somehow read a"garrulousness" exception to

this Court's prior reversal of the Ohio Supreme Court in Doyle, supra. Doyle

-10-

Supreme Court apparently needs further instruction from this Court as to the

meaning of Doyle. Such aide should not be necessary as the Doyle decision

clearly prohibits the prosecution from using an accused's pre-trial silence

against him at his trial.

—

contains no such exception (petitioner in that case was garrulous). The Ohio

| The State of Ohio cavalierly violated petitioner's right to due

process of law and his right not to give evidence against himself during the

investigation of the state's case against him. This Court forbade such

'| conduct in a non-death penalty case in Doyle, supra. The extreme penalty that

|| the state seeks to exact from Carl Osborne, Jr. should make his case as

| deserving of a reversal as Doyle's.

{

site

ee ee ee

II]. | THIS COURT SHOULD GRANT CERTIORARI TO

DETERMINE WHETHER THE PROSECUTOR DENIED

PETITIONER HIS RIGHT TO DUE PROCESS OF

LAW GUARANTEED BY THE FOURTEENTH AMENDMENT

BY INTRODUCING H

THE MOUTH OF THE PROSECUTOR UNDER THE RUSE

OF LAYING ND HMENT,

WHEN SUCH IMPEACHMENT NEVER FOLLOWED.

III. THIS COURT SHOULD GRANT CERTIORARI BECAUSE

HE PROS N H

AND FOURTEENTH AMENDMENT RIGHTS TO FACE AND

SECLERATTONS THE STATE SEEKS TO CONDEMN HIM

v H

As the trial record reveals (Tr. 381-383), the prosecution originally

intended to call a doctor as a witness to testify that Kay Osborne was too i1]

‘| to testify. The defense justifiably objected on the grounds that the jury

would be left with the impression that "somehow this witness has some sort of

tremendous evidence that we just can't get to." (Tr. 381) In addition, at

p. 382, the prosecutor assured the defense that it would not pursue the line

of questioning with the doctor that it later followed with the petitioner.

While the judge was considering the objections of the defense, counsel reached

a gentlemen's agreement that absolutely no mention of Kay Osborne would be

made. (Tr. 383)

Despite this agreement and over strenuous objections by defense

counsel, the prosecution cross-examined the accused as to what Kay Osborne had

told him when she visited him at the county jail. (Tr. 478-481) By using

the form of a question, the prosecutor testified that Kay Osborne told the

petitioner that Alberta Osborne had confessed to Mr. Thomen, that she asked

the petitioner “to tell the truth," and that the entire conversation had been

tape recorded.

This conduct by the prosecutor was not only a violation of the

“gentlemen's agreement," but also was the grossest form of hearsay. It is

obvious that the prosecutor was using Kay Osborne's out-of-court statement to

show the truth of the matter stated therein. Since this was not a statement

-12-

of Carl Osborne, it could not have been a prior inconsistent statement, so this

evidence must have been offered under the quise of laying a foundation for

impeachment. The prosecution apparently admitted that was the intent of their |

action in the appellant court when they stated at page 15 of their original

brief:

"In actuality, the cross-examination was

directed at why when the defendant had

numerous opportunities to reveal his true

facts, he did not do so until trial. He

had been asked why he did not reveal his

true facts one week after the homicide

and stated that it was not the right time.

It was not the right time when riding back

from Pennsylvania with police, when talking

with his attorney or while in jail. It was

also '...not the time to tell the real facts

..' during his conversation with his

sister."

It is interesting to note that the state's justification for this

interrogation is that it was violating the petitioner's Fifth and Fourteenth

Amendment rights under State v. Stephens, 24 Ohio St. 2d 76 (1970), and

Doyle v. Ohio, 96 S. Ct. 2240 (1976). This only serves to compound the error

of the denial to the petitioner of his right to confrontation under Amendment

VI to the United States Constitution, Pointer v. Texas, 380 U.S. 400 (1965),

which occurred when the hearsay was admitted.

oo — —— . +

In the instant case the hearsay was given a greater aura of

credibility because the prosecutor was testifying and because the conversation

between Kay Osborne and the petitioner was tape recorded. Thus, the jury

might well have given the hearsay much more credit than it otherwise would.

The only remedy for this error is a new trial.

- *

IV. THIS COURT SHOULD GRANT CERTIORARI TO

OF GRANTING THE DEATH PENALTY PURSUANT

TO SECTION 2929.04 OF THE OHIO REVISED

CODE TS INCONSTSTENT WITH THE PROHIBITION

AGAINST CRUEL AND UNUSUAL PUNTSHMENT OF

THE EIGHTH AND FOURTEENTH AMENDMENTS TO

THE CONSTITUTION OF THE UNITED STATES.

In Gregg v. Georgia, 96 S. Ct. 2909 (1976); Jurek v. Texas, 96 S. Ct.

2950 (1976), Profitt v. Florida, 96 S. Ct. 2960 (1976); Woodson v. North

Carolina, 96 S. Ct. 2978 (1976), and Roberts v. Louisiana, 96 S. Ct. 300]

(1976), the United States Supreme Court decided that "the punishment of death

does not invariably violate the Constitution." Gregg v. Georgia, supra, at

2923. The holding more important in terms of the Ohio statute, however, was

that a mandatory death penalty could not be applied consistently with the

Eighth and Fourteenth Amendments because such a penalty “departs markedly from

contemporary standards respecting the imposition of the penalty of death,"

Woodson v. North Carolina, supra, at 2990, and because it fails "to allow the

particularized consideration of relevant aspects of the character and record

of each convicted defendant before the imposition upon him of a sentence of

death." Id. at 2991. The court also noted that "[tJhe constitutional vice of

mandatory death sentence statutes--lack of focus on the circumstances of the

particular offense and the character and propensities of the offender--is not

resolved by...[the] limitation of first-degree murder to various categories of

killings." Roberts v. Louisiana, supra, at 3006. Since the fact that

Section 2929.04 Ohio Revised Code clearly limits the imposition of the death

penalty to certain categories of killings is not dispositive of its constitu-

tionality, the question of whether the statute permits the consideration of

the character and propensities of the offender and the circumstances of the

particular offense must be resolved.

At first glance, the Ohio statute appears to be constitutional

because it resembles, at least in form, the statute upheld in Profitt v.

Florida, supra. However, a closer examination of the Ohio statute reveals

that only one characteristic of the individual is taken into account--that

-14-

\"[t]he offense was primarily the product of the offender's psychosis or mental

deficiency... ." Section 2929.04 (B) (3) Ohio Revised Code. Moreover, since

it is highly unlikely that anyone who performed a “mercy killing," (which is

apparently what Section 2929.04 (B) (1) refers to), would ever be found guilty

of aggravated murder, the statute, in effect, permits the consideration of

only one mitigating circumstance of the particular offense, that is, "Li]t is

unlikely that the offense would have been committed, but for the fact that the

offender was under duress, coercion, or strong provocation." Section 2929.04

| (B) (2).

ee ee eee

In contrast, the Florida statute, Fla. Stat. Ann. Section 921.141 (6)

(Supp. 1976-1977), permits the consideration of five other mitigating circum-

stances including such factors as:

(1) the defendant has no significant

history of prior criminal activity;

(2) the defendant was an accomplice in

the capital felony committed by

another person and his participation

was relatively minor;

(3) the defendant acted...under the

substantial domination of another

person;

(4) the capacity of the defendant to

appreciate the criminality of his

conduct or to conform his cunduct to

the requirements of the law was

substantially impaired;

(5) the age of the defendant at the time

of the crime.

Two of these mitigating circumstances, that is, the age of the petitioner at

the time of the crime and the fact that he acted under the substantial

domination of another person, might have made a significant difference in the

sentence the petitioner received, if such circumstances had been considered.

Although it is apparent from the transcript of the sentencing

a a ee ee Cee

| hearing that the petitioner was subject to substantial domination, the judge

probably did not consider such domination to constitute the mitigating

circumstances of duress since duress is not defined in the statute, and

substantial domination was not included in previous definitions of duress in

Ohio law. In State v. Good, 110 Ohio App. 415 (1960) the Franklin County

Court of Appeals described duress as being "present, imminent and impending,

and of such a nature to induce a well-grounded apprehension of death or serious

bodily injury if the act is not done." Thus, the petitioner was denied the

benefit of consideration of mitigating circumstances which may have spared his

life if the Ohio statute were not of such a mandatory nature.

The mandatory nature of Ohio's procedure and its resulting harshness

to this particular petitioner are seen more clearly when contrasted with that

of Texas which permits the court to consider the age of the defendant and the

Substantial domination of another, Jurek v. Texas, Supra, at 2956-2957, and

with that of Georgia which permits the jury to make a recommendation of mercy

that is binding on the trial court without finding any mitigating circumstances.

Gregg v. Georgia, supra, at 2936.

The fact that the petitioner's life might well have been spared had

he been tried under those statutes upheld by the United States Supreme Court

is a clear indication that the Ohio statute "treats al] persons convicted of a

designated offense not as uniquely individual human beings, but as members of

a faceless, undifferentiated mass to be subjected to the blind infliction of

the penalty of death." Woodson v. North Carolina, supra, at 2991.

— ee = eee ae eee ee —a

—

2 ee ee + eee eee

V. THIS COURT SHOULD GRANT CERTIORARI TO

DETERMINE WHETHER THE OHIO PROCEDURE FOR

IMPOSITION OF THE DEATH PENALTY AS SET

FORTH IN SECTION 2929.04 OHIO REVISED

CODE DOES NOT MEET THE REQUIREMENT OF

THE DUE PROCESS CLAUSE OF THE FOURTEENTH

AMENDMENT THAT THE PROSECUTION MUST PROVE

BEYOND A REASONABLE DOUBT EVERY FACT

NECESSARY TO CONSTITUTE THE CRIME CHARGED.

In the case, In re Winship, 397 U.S. 358 (1970), this Court held that’

proof beyond a reasonable doubt, which is required by the Due Process Clause in

criminal trials, is among the essentials of due process and fair treatment

required during the adjudicatory stage. This Court found that the requirements

of proof beyond a reasonable doubt played a vital role in our criminal proce-

dure because of the interests of the accused and the interests of society. The:

accused has at stake both the possibility that he may lose his liberty upon :

conviction and the certainty that he would be stigmatized by the conviction.

Moreover, it is important in our free society that the community has respect

and confidence in the applications of the criminal law.

Although it is only logical that the protection of these interests

by the Due Process Clause would require that the standard of proof beyond a

reasonable doubt be governing throughout the trial of the accused, including

the sentencing stages, Winship, supra, did not specifically address that

question. However, in Mullaney v. Wilbur, 421 U.S. 684 (1975), this Court held

that the due process requirement that the prosecution prove beyond a reasonable

doubt every fact necessary to constitute the crime charged also applied to the

punishment determination stage of the trial.

In Mullaney, the procedure for assigning punishment for felonious

homicide according to Maine's homicide law was at issue. That law provided

that absent justification or excuse, all intentional or criminally reckless

killings were felonious homicide. Felonious homicide was punished as murder,

that is, by life imprisonment, unless the defendant proved by a preponderance

of the evidence that it was committed in the heat of passion on sudden provo-

cation, in which case it was punished as manslaugher by a fine not to exceed

$1,000 or by imprisonment not to exceed 20 years. This Court found that the

«fo

;

practice in Maine of drawing a distinction between those who kill in the heat

of passion and those who kill in the absence of this factor, while refusing to

require the prosecution to establish beyond a reasonable doubt the fact upon

which it turned, denigrated the interests found critical in Winship, and thus,

violated the Due Process Clause of the Fourteenth Amendment. In so holding,

this Court accepted the Main Supreme Judicial Court's construction of its —"

that is, that murder and manslaughter are punishment categories of the single

"The safeguards of due process are not

rendered unavailing simply because a deter-

mination may already have been reached that would

stigmatize the defendant and that might lead to

a significant impairment of personal liberty.

The fact remains that the consequences resulting

from a verdict of murder, as compared with a

verdict of manslaugher, differ significantly.

Indeed, when viewed in terms of the potential

difference in restrictions of personal liberty

attendant to each conviction, the distinction

established by Maine may be of greater importance

than the difference between guilt or innocence

for many lesser crimes.

Moreover, if Winship were limited to those

facts that constitute a crime as defined by

state law, a state could undermine many of the

interests that decision sought to protect without

effecting any substantial change in its law. It

would only be necessary to redefine the elements

that constitute different crimes, characterizing

them as factors that bear solely on the extent

of punishment."

The Ohio procedure for imposing the death penalty is remarkably

|| similar to the Maine procedure for imposing the sentence of life imprisonment

and thus does not comport with due process of law. Section 2929.04 Ohio Revised

Code draws a distinction between capital and noncapital aggravated murder, yet

it does not place the burden of establishing the absence of mitigating

circumstances, on which the distinction turns, on the prosecution.

In the appellate courts below, the prosecution argued that Section

2929.04 Ohio Revised Code does not place the burden of proof of mitigating

circumstances on the defendant, but that the statute directs the Court to

impose a life sentence if it finds one or more of the mitigating circumstances

-18-

to be present. Although the trial court is required to order a presentence

'| investigation and a psychiatric examination to be made pursuant to Section

2929.03 (D) Ohio Revised Code, it is contrary to the concept of a neutral

judiciary to place the burden of persuasion on the Court.

In support of its argument, the prosecution correctly stated that

the statute does not explicitly place the burden of persuasion in establishing

| the mitigating circumstances on the defendant. This means that at best, the

|| the consequence of which may be death to the defendant. Moreover, the respect

and confidence of the society in the applications of our criminal law are

defendant can be sentenced to die under an uncertain and ambiguous procedure,

| undermined even more seriously when the trial judge can tacitly place the

burden of persuasion on the defendant without fair notice.

-19-

— ee >

—-—_ = -—

VI. THIS COURT SHOULD GRANT CERTIORARI TO

DETERMINE WHETHER PETITIONER'S FOURTEENTH

AMENDMENT RIGHT TO DUE PROCESS OF LAW WAS

VIOLATED WHEN HE RECEIVED THE DEATH PENALTY

PURSUANT TO SECTION 2929.04 OHIO REVISED

CODE WHEN AN AGGRAVATED CIRCUMSTANCE

PERMITTING A DEATH PENALTY SENTENCE WAS

NOT PROVED BEYOND A REASONABLE DOUBT.

Section 2929.04 of the Ohio Revised Code only permits a death penalty.

when an accused is found guilty of a specification included in his murder

indictment. The finding of guilty of murder and of the specification included

therein are separate findings for the jury. At his trial, the petitioner was

found guilty of only one specification, murder for hire. However, the

prosecution introduced absolutely no evidence that Car] Osborne, Jr. was ever

hired to commit the murder of Hermalee Ross. Since no evidence to support this

finding of guilt was presented, the execution of the petitioner under these

circumstances would not only violate the Section 2929.04 Ohio Revised Code,

‘but would also be contrary to due process of law. Thompson v. City of

Louisville, 362 U.S. 199 (1960).

-20-

VII. THIS COURT SHOULD GRANT CERTIORARI TO

DETERMINE IF PETITIONER'S RIGHT TO A

| FAIR AND IMPARTIAL JURY AS GUARANTEED

BY THE SIXTH AMENDMENT TO THE CONSTITUTION

OF THE UNITED STATES WAS VIOLATED BY THE

COURT'S FAILURE TO GRANT A MOTION FOR A

| CHANGE OF VENUE WHEN A COURT ORDER, ISSUED

IN LIEU THEREOF AND DESIGNED TO DIMINISH

PRE-TRIAL PUBLICITY, WAS DISOBEYED.

Petitioner made a timely motion for a change of venue pursuant to

Rule 18 (B) of the Ohio Rules of Criminal Procedure; it was the first such

|| motion that Mr. Kura, a man of considerable experience, had ever thought

| necessary to make. (Tr. p. 6) In support of his argument, defense counsel

offered 48 news articles (Tr. p. 4), and urged that the danger of pre-trial

publicity was increased in this case because of the trials of the two co-

defendants and because of the fact that each prospective juror had received a

Summons with the name of the co-defendant written thereon. With respect to

the summons, Mr. O'Grady stated:

"And factually it is true that the panel

of jurors that were selected for the case

of the State of Ohio vs. Carl Osborne have

been put on notice of the name of the case.

| This is a fact that the office of the

} prosecuting attorney has been fighting for

| some years. We think that the practice

should not be that way and potential murder

jurors should never know what case they are

| called upon to hear or even the nature of

i the case." (Tr. p. 6)

On the next day, Mr. O'Grady further agreed that if a new jury panel

| were called and if the petitioner's name were not on the summons, the prejudice |

caused by pre-trial publicity would be diminished. (Tr. pp. 13-14) The court |

| agreed with Mr. O'Grady and ordered that a new jury panel be drawn. However,

| as the jury summons for the new panel at p. 35-A of the appendix shows, this

court order was ignored, and the jurors who actually reached the verdict in

this case had nearly a month to educate themselves about the case they were to —

hear by reading the newspapers. Therefore, the court should have granted the

motion for a change of venue as provided by Ohio Criminal Rule 18 (B) and

+Section 2901.12 (I) Ohio Revised Code.

—

——

The failure to grant a change of venue under these circumstances has

been held to constitute prejudicial error which entitles the accused to a new

trial. Forsythe v. State, 12 Ohio Misc. 99 (1967). In that case, the jurors

were also notified approximately one month tefore the trial that they would be

serving on the defendant's case, and the court found that the effect of the

summons was to polarize the prospective jurors to the news of the case like

iron filings to a magnet. This is especially true in a case such as the one now

at bar. The public interest in a murder as a result of triangular love affairs

| is extremely great as evidenced by the popularity of the theme in literature.

As the court in Forsythe noted, an assumption by a trial judge that

a juror could disregard pre-trial publicity because he was so instructed, was

a triumph of faith over experience. Faith assured the judge that all jurors

|, could be purged of a prejudiciai opinion by instruction, but experience told

him that when a juror said he would disregard such an opinion, he really meant

that he would try his best. The court held that a defendant should not have

to stake his life on the possible failure of the juror to succeed, but should

be granted a change of venue.

The placing of the petitioner in this precarious position in the

instant case could have been easily avoided. For example, the clerk's office

could have issued the summons using only the case number, or in the alternative,

a change of venue could have been granted which would have assured the protection

of the petitioner from the prejudicial effects of the pre-trial testimony. As

the Ohio Supreme Court posited in Newspapers v. Phillips, 46 Ohio St. 2d 457,

466 (1976):

“There are 88 separate county judicial

districts in Ohio, each with its own court

of general jurisdiction. No newspaper has

an intensive circulation area that extends

beyond the counties that are contiguous

to the county in which the newspaper is

published. The in-depth coverage area of

the most powerful television and radio

stations does not extend to more than 30

percent of the counties of the state. One

of the principal purposes of R.C. 2901.12 (I) '

and Criminal R. 18 (B) is to provide for a

~22-

change of venue in a criminal case where

prejudicial publicity makes it appear that

a fair and impartial trial cannot be held

in the jurisdiction in which trial would

otherwise be held.

Change of venue has been used for that

purpose and has served that purpose."

Given the fact that the penalty assigned as a result of the jury

verdict was death, and given the peculiar facts involved in the motion for a

change of venue in this case, it is clear that the case should be remanded for

| a new trial so that the court may be certain that “the conclusions...reached

in [the ] case will be induced only by evidence and argument in open court, and

| not by any outside influence, whether of private talk or public print.”

| Patterson v. Colorado, 205 U.S. 454, 462 (1907).

———— ewe ee —_— &— —-2e -<o

ES OE eee

CONCLUSION

For all of the reasons set forth herein, the petition for writ of

certiorari should be granted.

Respectfully submitted,

Cnr. WEL

CART WOLFROR

Suite 1060 - IBM Buildin

140 East Town Street

Columbus, Ohio 43215

(614) 228-4100

ATTORNEY FOR PETITIONER

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing Petition for Writ of

Certiorari to the Supreme Court of Ohio was hand delivered to Mr. George C.

Smith, Franklin County Prosecutor, Hall of Justice, 369 South High Street,

Columbus, Ohio 43215, this 2nd day of December, 1977.

Fed

T. WOLFROM

ATTORNEY FOR PETITIONKR

-24-

Fs eS

APPENDIX A, is the opinion of the Court in State v. Osborne

(1977), 50 Ohio St.2d 211, and has not reproduced here.

APPENDIX B

IN THE COURT OF APPEALS OF FRANKLIN COUNTY, OHIO

State of Ohio,

Plaintiff-Appel lee,

Vv. . : ; No. 75AP-423

Carl E. Osborne, Jr.,

Defendant-Appel lant.

JOURNAL ENTRY OF JUDGMENT

For the reasons stated in the decision of this court rendered

herein on June 24, 1976, the six original assignments of error nt 7

eleven supplemental assignments of error are overruled, and it is th

judgment and order of this court that the judgment of the Common PYeas

Court of Franklin County, Ohio, is affirmed.

- bbe!

Judge Archer E.tReitly ai

cc: Alan C. Travis % j

Carl T. wolticnm “

Cerolyn A, ‘Jav%s

Th rn

| BEST COPY AVAILABLE =

wad

oreiOdl

‘too S@ner §lol

* ae

cnr

APPENDIX C

IN THE COURT OF APPEALS OF FRANKILIN COUNTY, OHIO

State of Ohio, :

Plaintiff-Appellee,

No. 75AP-423

Carl E. Osborne, dr.,

REILLY, J.

Defendant-Appel lant.

DECISION

Rendered on June 24, 1976

MR. GEORGE C. SMITH, Prosecuting Attorney,

MR. ALAN C. TRAVIS, Assistant,

Franklin County Hall of Justice,

369 South High Strect,

Columbus, Ohio, ;

For Plaintiff-Appellee. y

MR. CARL T. WOLFROM,

50 West Broad Street,

Columbus , Ohio,

and

LEGAL AID AND DEFENDER SOCIETY,

MS. CAROLYN A. WATTS, Director,

MR. JAMES KURA, Assistant,

MR. DAN MADDEN, Legal Intern,

241 South High Street,

Columbus, Ohio,

For Defendant-Appellant.

—_—— LLL LE ee a = Ow a» -—

——

No. 75AP-423 cath 2

This is an appeal from a judgment of the Court of Common

Pleas, Franklin County, Ohio. Appellant was charged with two counts

of aggravated murder (R. C. 2903.01) and one count of kidnapping

(R. C. 2905.01). It was further specified by the Grand Jury that

the offenses of aggravated murder were committed with prior calcula-

tion 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 as charged. Prior to appellant's trial, two co-

defendants were tried upon the same charges and were also found guilty.

The case was argued in this court on the merits, upon

regular assignment. Counsel for appellant, however, was granted leave

to file a supplemental brief and assignments of error, to which counsel

for appellee also submitted a supplemental brief. This necessitated

the preparation and filing of a supplemental transcript. The entire

record on appeal is now before this court. The evidence is summarized

substantially in chronological order.

Mrs. Hermalee Ross, the victim, was employed at the Ontario

food store on Morse Road, Columbus, Ohio. She apparently went to

| work at approximately 7:35 a.m., Sunday, December 15, 1974. She was

to be there by 8 a.m. She and her husband lived in Hilliard, Ohio.

Robert Brock, a fellow employee, testified that on the morning of

December 15, 1974, he arrived at Ontario's at about 6:45 a.m. More-

over, he testified that between 8:30 and 8:45 a.m. he went to the

parking lot and saw Mrs. Ross's automobile parked next to his own

vehicle. He noted a red spot on his car and other red spots on the

No. 75AP-423 3

ground and on a tire. He testified that Mrs, Ross did not report for

work that day, and the spots were not there when he parked his automobile.

Officer Larry Bartholow, of the Columbus Police Department

Mobile Crime Laboratory, photographed the scene at the parking lot,

and recovered one of the victim's earrings, two pieces of metal, and a

matchbook. Miss Lois Berg testified that she was in the laundry near

the Ontario store at approximately 8 a.m. that morning, and saw a man

wearing blue jeans, a blue jean jacket, and a dark blue bandana with

white print on his head. She identified state's exhibit 27 (a garment

taken from co-defendant Weind's home) as the scarf, or bandana, she

observed. The man went to a “bluish-green car in the parking lot,"

where she saw “some kind of a commotion." The man entered the passenger

seat of the automobile, and the car was driven away. Miss Berg identi-

fied 2 photograph of appellant's sister's car as the vehicle involved.

. Mrs. Dorothy Hale, 11380 Vans Valley Road, Delaware County,

testified that at about 8:30 a.m., December 15, 1974, she observed an

automobile approach an abandoned schoolhouse close to her home. She

said two men took a woman from the car and took her into the schoolhouse

building. She called her son, Wayne, who testified the time was 8:40

a.m by his digital clock; then she saw the two men leave the schoolhouse

alone. A photograph of appellant's sister's automobile was identified

2s similar to the one the witness saw. Her son, Wayne Hale, reiterated

the same testimony. He said that after the two men left he went to the

schoolhouse and found a woman's body.

Joseph Willis, a former employer of appellant's mother,

tlt ae ere

aes eee eae eee

(22 @ < ee.

~_ i Be Bee ee tee em ee ee ee

ee ee

No. 75AP-423

identified the murder weapon (state's exhibit 20, a .25 caliber

automatic pistol) as one he gave to her. There was a stipulation

that James Young, licensed firearms dealer, Newark, Ohio, would tes-

tify that he sold the gun to Joseph Willis on September 7, 1973.

Miss Davina Prince testified she found Mrs. Ross's purse containing

$100 alongside the automobile of Lee Brock at about 8:20 a.m., Decem-

ber 15, 1974, at the Ontario store parking lot area.

The parties stipulated testimony of Detective Tom Jones

‘that the latter was called by an attorney for one Michael Goins; that

Detective Jones and Goins had discussions regarding the Ross homicide;

and Goins took the police to a specific location in Alum Creek, Columbus,

Ohio, where they recovered the murder weapon. The parties also stipulated

that Detective Tom Strausbaugh would testify that, along with Detective

Robert Cupp, he executed a search warrant X.. a search of co-defendant

Weind's residence and seized a pair of denim clogs, a headscarf, denim

_ jacket, and trousers, which were delivered to the Police Crime Labora-

tory. Moreover, that search warrants were executed at appellant's home,

seizing a pair of denim trousers, as well as the automobile of appel-

lant's sister, Kay Osborne. There were additional stipulations that

six .25 caliber shell casings were found at the scene of the murder;

that expended bullets were recovered from beneath the floorboards of

the schoolhouse, and from within the floorboards; and also concerning

samples from the victim's blood type, which was the same as the blood

spots found on the Ontario store parking lot and upon the chrome strip

of appellant's sister's car; and that Type A bloodstains were also found

No. 75AP-423 . : . 5

on the back seat and on the back of the right front seat of the car.

There was human blood found on co-defendant Weind's denim clog shoes.

It was stipulated that the bullets found at the murder scene and

removed from the victim's head were fired by exhibit 20, the .25 caliber

automatic. Counsel also stipulated the deputy coroner's testimony that

death was caused by gunshot wounds to the back and the back of the neck.

Additionally, the autopsy showed repeated trauma to the head with a

metallic object.

f Counsel further stipulated that if Steve Lucas of Eastland

Shell Service Station testified he would state he knew members of the

Osborne family; that December 16, 1974, appellant's mother and James

Weind, along with appellant, came to his station in appellant's sister's

car; that at Mrs. Osborne's (appellant's mother's) request, he replaced

all four tires on the car, which were paid for in cash; that he recom-

mended using one of the tires as a spare, as it was a bald tire with a |

puncture repair, but that all four tires were taken by Weind and placed

in the trunk of the car.

Edgel Ross, the victim's husband, testified that at one time

he employed appellant's mother and appellant. He admitted an affair with

appellant's mother over a five-year period, but had told her it was over

approximately four to six weeks before the murder.

Debbie and Brenda Zweydorff, friends of appellant's sister,

testified that during the evening of December 14, 1974, anu early morning

hours of December 15, 1974, they were at appellant's home, which was also

his mother's and sister's home, and they were having a party. They said

-43-

— oe 6 Dee 8 te

ES eee 4a ees

No. 75AP-423 6

co-defendant Weind was there wearing denim clothes and a bandana.

They testified appellant and Weind took the ke,s to the sister's car

and went for beer; the girls left the party and returned at approxi-

mately 4:30 a.m. Appellant, Weind, and appellant's mother were talk-

ing together. Debbie Zweydorff testified she stayed the remainder of

the night at the Osborne home, retiring at 5:15 a.m., December 15,

1974. She awakened at about 6 a.m. when defendant-appellant entered

the bedroom and informed his sister, Kay Osborne, that he and Weind

were going to take her car again and go out to breakfast. Miss Zweydorff

said that about 10 to 10:15 a.m.. appellant and Weind came running into

the house; appellant asked his mother to come outside; they then returned

inside for scrub buckets, brushes and water, and again went outside. She

said that about a half hour later the three came back into the house and

leafed through the telephone book. Several calls were made. Thereafter,

appellant, Weind, and his mother left with the car. Miss Zweydorff

testified, “They said they were going to get it cleaned." ,

dames Westlake, appellant's uncle, incarcerated at Chillicothe

Correctional Institute, testified that, December 23, 1974, appellant and

his mother visited him. He said appellant showed him a news clipping

of the murder and described the crime. He testified that appellant said

he and James Weind killed Mrs. Ross with his mother's gun. ‘He testified

appellant said he called Mrs. Ross over to the car; Weind hit her in the

head with a gun, which splintered; and that they took her to a schoolhouse

and killed her. Further, he testified that appellant told him that they

tried to clean it up and changed the tires. Westlake Suggested appellant

No. 75AP-423 7

could go to Williamsport, Pennsylvania, and gave him a name and

address there. Subsequently, Westlake gave this information to an

agent of the Federal Bureau of Investigation and to Columbus Homicide

Detective Ronald Price.

Detective Price testified that he transported appellant back

from Williamsport, Pennsylvania. Edward M. Goins was granted “use

immunity" (R. C. 2945.44) and said he knew both appellant and co-

defendant Weind and recognized the murder weapon, exhibit 20. Goins

further testified that he recognized state's exhibit 37, a..380 automatic

pistol, as the kind of gun he sold to Weind in the early morning hours

of a Sunday in December, 1974. Goins testified that Weind and appellant

came to his apartment that morning. He said he could see appellant

seated in the car. He testified Weind come tantde the apartment and

purchased the gun. Charles Tinon testified that in March, 1975, he was

housed in the same cell in the county jail with appellant and one Paul

- Brumfield. His testimony was that he overheard a conversation between

the two, in which appellant described the murder.

There was a stipulation of testimony of metallurgy experts

from Battelle Memorial Institute that the .380 automatic (state's exhibit

37) was examined and compared to the metallic fragments found in the

parking lot and based upon spectroscopic analysis the metals were of

the same origin.

The state, prior to resting its case, offered into evidence

exhibits 1 through 50, which were admitted without objection.

Appellant testified in his own behalf. He denied leaving his

-45-

No. 75AP-423 . 8

home the night before the murder. He placed the responsibility upon

his mother and James Weind. He denied the testimony of his uncle,

James Westlake, and said the latter lied. He also testified that Tinon

lied. He admitted fleeing the state to Williamsport, Pennsylvania. He

testified on cross-examination that, while he knew the real facts of

the case, he initially lied to the pol*ce,

This appeal was timety filed, Counsel for appellant, in the

initial brief, assigned six assignments of error. Subsequently, in the

supplemental brief, there were eleven assignments of error advanced.

At any rate, in several instances they involve the same basic issues

and, therefore, are considered together. Appeljant's first assignment

of error is the following:

"The trial court erred in overruling the defen-

dant's objection to the introduction of testimony

of prosecuting witness #12, Michael E. Goins,

which related to the jury extrajudicial declara-

tions of James K. Weind." :

The testimony involving statements made by the alleged os-

conspirator, Weind, is hearsay in nature. Notwithstanding, hearsay

evidence is admissible concerning a statement of a co-conspirator in

furtherance of the objectives :as an exception to the exclusion of. hear-

say rule. The basis of the hearsay rule, of course, is to avoid violat-

ing the right of confrontation and cross-examination of witnesses.

Thus, an exception to the rule must be carefully considered. The

second paragraph of the syllabus of State v. Carver (1972), 30 Ohio St.

2d 230, reads as follows:

"In a criminal case, where the existence of

a conspiracy to rob has been established, an

-46-—

No. 75AP-423 9

extrajudicial statement of a co-conspirator

made in furtherance of the objectives of

that conspiracy is admissible in evidence

as an exception to the hearsay rule, and is

not violative of defendant's constitutional

right of confrontation and cross-examination. "

A careful review of the evidence adduced prior to the hearsay

testimony indicates the state had established the existence of a conspir-

acy and that the extrajudicial.statement was admissible. At any rate,

even if error, it was not prejudicial because the crucial testimony of

appellant's uncle, James Westlake, noted above, which apparently was

believed by the jury, was overwhelming as to appellant's guilt. This

is true, even. without considering the other incriminating evidence from

the other witnesses. Therefore, appellant's first assignment of error

is overruled.

Appellant's second assignment of error is the following:

"The trial court erred in allowing the jury

to consider testimony of defendant upon cross-

examination regarding a conversation at the

Franklin County jail between Kay Osborne and

the defendant."

This assignment of error is not well taken. Appellant chose

to take the witness stand and testify. The crux of his testimony was

that he had known from the time of the crime who murdered Mrs. Ross, but

was waiting for the appropriate time to communicate this knowledge. He

implicated his mother as the party responsible for the crime and testi-

fied she had so confessed to him. Appellant was subject to the same

rules upon cross-examination concerning his credibility as any other

witness. Hence, the state probed the issue as to why he delayed revealing

-47.

— eee te.

_——— ti. le le —_— — as, le

CC re ee

CC EO EE a

No. 75AP-423 : 10

such information until his testimony at trial. There were specific

questions relating to his credibility concerning various times when he

could have communicated the information to which he testified. He

responded that he was always willing to cooperate and tell the facts

but was never given such opportunity, Then he was asked if he recalled

a conversation with his sister (Kay Osborne) while in jail awaiting |

trial. There was an objection. This resulted in a conference at the.

bench. The objection was overruled: He responded that such. conversation

with his Sister was also not the right time to reveal the true facts.

Such questioning upon cross-examination was not prejudicial error,

considering the entirety of the record in this.case. Further, the

_totality of the cross-examination does not show a prejudicial violation

of appellant's right to remain silent. Therefore, appellant's second

assignment of error is also overruled: "

. Appellant's third assignment of error is as follows:

“The trial court erred in overruling defen-

dant's motion to find the death penalty

unconstitutional because the death penalty

“as it stands in Chapter 2903 of the Ohio Codé

is unconstitutional under the Eighth and

Fourteenth Amendment of the Constitution of -

the United States. -

This court has determined this issue upon several occasions.

For example, State of Ohio v. Alberta Osborne, case number 75AP-327;

State v. Harris, case number 74AP-580; State v. Hancock, case number

75AP-151; wd State v. Royster, case number 75AP-195. Consequently,

the issue of the death penalty as enacted by the Ohio General Assembly,

in view és Eurman v. Georgia (1972), 408 U.S..238, has been thoroughly

considered by this court in previous decisions. Therefore, appellant's

third assignment of error is overruled.

No. 75AP-423 1

Appellant's fourth, fifth and sixth assiqnments of error

are as follows:

4. “The trial court committed error in failing

to sustain the defendant's motion for a

change of venue and in so doing deprived

the defendant of his constitutional right

to a trial by a fair and impartial jury."

5. “The trial court committed error in over-

ruling the defendant's motion to have sepa-

rate voir dire of.-the jurors. Thus, the

trial court deprived the defendant of his

constitutional right to a trial by a fair

and impartial jury. °

. 6. "The trial court committed error in failing

to sustain defense's motion to have jurors

sequestered."

R. C. 2901.12(1) and Criminal Rule 18 provide that, where

it appears that a fair and impartia] trial cannot be had, a change of

venue will be granted. Criminal Rule 24(B)(9) specifies that a prior

opinion with reference to guilt or innocence will not disqualify a

prospective juror if the court is satisfied, following a voir dire .

examination, that the jury will render an impartial verdict upon the

law and evidence as presented at trial. Fundamentally, a change of

venue will be granted only where it is plain that a fair and impartial

jury cannot be had in the county. This issue is essentially within the

sound discretion of the court and will not be disturbed upon appeal

unless it is shown that the trial court abused its discretion. The

transcript does not show any abuse of discretion by the trial court in

denying appellant's motion for.a change of venue.

The most unusual circumstances involved in this case resulted

in considerable news coverage. Nonetheless, there is no indication

No. 75AP-423 12

whatever that such coverage in any way affected appellant's constitu-

tional rights to a fair and impartial jury. Quite the contrary, the

transcript shows there was a careful voir dire of the jury, and the |

jurors selected affirmatively indicated they could heur the evidence,

and decide the issues presented, fairly and impartially. Moreover,

there is no indication of any, bias or unfairness to appellant in the

voir dire examination of jurors. Note State v. Johnson (1972), 31

Ohio St. 2d 106. The record shows there was probably greater coverage

given to this case than others involving homicide. The record definitely

does not show that such coverage was in any way not proper, or affected

appellant's right to a fair trial. There simply isn't a comparison

‘with Sheppard v. Maxwell (1966), 384 U. S. 333, which is plainly distin-

guishable from this case. This court has spoken, in State v. Osborne,

supra, concerning sequestration of jurors. It is not necessary to

amplify upon such a clear and valid declaration.

Therefore, appellant's fourth, fifth and sixth assignments of «

error are also overruled.

As noted above, appellant's counsel. submitted a supplemental

brief including supplemental assignments of. error, several of which were,

in essence, considered with the other assignments of error. They are

as follows:

1. "The denial of defendant-appellant's motion

for a change of venue by the trial court

constituted a deprivation of defendant-

appellant's constitutional right to a trial

by a fair and impartial jury. The effect

of the deprivation was heightened by the

summons sent to prospective jurors which

contained defendant-appellant's name."

coe

No. 75AP-423 13

2. “The admission of testimony of Michael E.

Goins does not fall within the exception to

the hearsay rule for co-conspirators and

constituted prejudicial error."

3. “The court erred in permitting testimony

and questioning both on direct and cross-

examination concerning certain acts allegedly

conmitted by the defendant-appellant in the

past when the purpose of such evidence could

only be construed as showing the accused's

propensity or inclination to coumit crime."

4. "The trial court erred in sentencing

defendant-appellant to death by execution

since the death sentence provided in Chapter

2903 of the Revised Code is inconsistent

with due process of law."

7. “The court erred in permitting cross-

examination of the defendant concerning

an alleged conversation and statements

possibly made by defendant-appeltant to

Kay Osborne since a stipulation was agreed

to between counsel for defendant-appel lant

and the prosecuting attorney not to mention

Kay Osborne as she was unavailable to

testify as a witness."

11. "Pursuant to the holding of Mvranaa v.

Arizona, (1966), 384 U.S. 436 a defendant

in a criminal case has an absolute right to

remain silent and has no duty whatsoever -in

coming forth with any evidence in his casc."

Consequently, for the foregoing reasons, these assignments

of error are also overruled.

Appellant's supplemental assignments of error numbers five and

six are the following:

5. “The court erred in refusing to permit in

canera inspection of prior statcments of

witnesses thus denying defendant-appel lant

the ability to determine the existence of

inconsistencies between the testimony of

such witnesses and their prior statements."

-51-°

———— a ee 8 eee ee

No. 75AP-423 . ae

6. “The court erred in permitting witnesses

Westlake and Tinon to testify in the trial

below. The prosecuting attorney had improp-

erly listed such witnesses on the discovery

furnished to defendant-appellant as John

Doe witnesses."

The record indicates the written or recorded statement of

witness James Westlake was actually provided to the defense. Therefore,

it was not prejudicial error for the trial court to refuse to permit in

camera inspection as alleged in appellant's fifth assignment of error.

Westlake's testimony appears the most damaging to appellant. Neverthe-

less, the court did not abuse its discretion in refusing to grant such

in camera inspection, or in permitting witnesses Westlake and Tinon to

testify at trial. Hence, appellant's supplemental assignments of error

numbers five and six are overruled.

Appellant's supplemental assignment of error number eight is

the following:

| 8. “The court erred in refusing to order written

summaries.of any statement, or copies thereof

made by the defendant to police prison infor-

mants."

Both Westlake and Tinon testified voluntarily at trial. They

were, of course, subject to cross-examination. Presumably, the jury

applied the same tests of credibility to their testimony as to the other

witnesses. Witness James Westlake's testimony may well have been deter-

minative; but it is quite plain that appellant and his mother visited

him of their own volition; that he heard appellant's admissions and then

contacted:a law enforcement officer and gave the information. There is

no indication that either witness was acting as agent for the police or

No. 75AP-423 15

the prosecuting attorney. Thus, this assignment of error is also

overruled.

Appellant's supplemental assignments of error numbers nine

and ten are the following:

9. "The trial court erred in refusing to permit

questions to prospective jurors concerning

their feelings toward the death nenai cy

thereby depriving defendant of the benefixs

of the ruling of the United States Supreme

Court in Witherspoon v. Illinois (1968),

391 U. S. 510."

10. "The court erred in refusing even to perwit

counsel for defendunt-appellant to challence

for cause the final juror seated in tlie

regular panel."

The jury’s function is to determine the facts and decide the

issues of guilt or innocence. The question of punishment is not for

the jury to decide. In capital cases, R. C. 2929.13(%) categorically

prohibits the trial court from referring to the penalty which may result

from a finding of guilty or not guilty upon any charge or specification.

Thus, since the sole purpose of the jury is to determine the facts,

rather than punishment, it would have been improper to interject the

punishment issue. This case is distinguishable from Witherspoon v.

Illinois (1968), 391 U. S. 510, or 88 S. Ct. 1770, cited by counsel for

appellant in the supplemental brief. In Witherspoon, the Supreme Court

of the United States, in interpreting an Illinuis statute providing for

the challenging of jurors, stated in effect that where the jury, as

under Illinois law, had jurisdiction to determine the death«sentence,

a law allowing the exclusion of a juror based upon his opposition to

the death penalty, was unconstitutional.

-53-

“

No. 75AP-423 y 16

Ohio has no such law permitting the jury to find the penalty

in a capital case so, therefore, this case citation is not applicable.

Therefore, appellant's ninth Supplemental assignment of

error is overruled.

Appellant's tenth supplemental assignment of error is also

not well taken. It is reiterated, the transcript discloses no abuse

of discretion by the trial court in refusing to permit counsel for

appellant to challenge for cause the final juror seated in the regular

panel. Challenges for cause are governed by Criminal Rule 24(B).

There are fourteen causes included, and only Subparagraphs 9 and 14

are conceivably applicable, to wit: ‘that the Sever has a state of »nind

involving ennity or bias toward the appellant or the State, or is other-

wise not qualified. The transcript does not indicate such.to be the

fact concerning the final juror seated in the regular panel. There-

fore, appellant's supplemental assignment of error number ten is also

overruled.

Whereupon, each ard all of appellant's assigninents of error

presented in both briefs are specifically overruled. Accordingly, the

judgment of the trial court is affirmed.

HOLMES and WHITESIDE, JJ., concur.

WHITESIDE, i. concurring.

, Although I concur in the judgment, I cannot concur entirely in

the majority decision with respect to some of the assignments of error.

With respect to the first, fifth, and sixth assignments of error,

and the first and second supplemental assignments of error, the reasons

-54-

No. 75AP-423 7

Stated in my concurring opinion in State v. Alberta Osborne, No. 75AP-327,

renderec on May 11, 1976 (1976 Decisions, page 1344, at 1363), set forth

ampie reasons of finding none of these assignments of error well taken.

Specifically as to the testimony of Goins, although perhaps not admissible

as an exception to the hearsay rule, such testimony cannot be considered

prejudicial in the legal sense, since there was substantial other evidence

more than sufficient to justify..a conviction, especially the testimony of

Westlake, defendant's uncle, who testified that defenciant admitted to him

defendant's involvement in the murder.

In other words, there was evidence that defendent had confessed

his guilt to Westlake. There was subsiantial other evidence of defendant's

guilt (even excluding Goins’ testimony), so that, if Mesllake's testimony

is believed, there could be no doubt of defendunt’s guilt. Furtherwore,

defendant verified most of Westlake's testimony except the confession

itself. Defendant's. "confession" was repeated in a conversation with a

fellow prisoner, overheard by a third prisoner, Tinon, who testified as to

defendant's statements. A

As to the second assignnent of error and the eleventh supplemental

assignment of error, some probable “error" is apparent upon the record. It

is improper for the prosecution to use defencant's silence at his tiwe of

arrest, and thereafter, to impeach his testimony at trial. Joyle v. Wood

(1976), 44 L.W. 4902. Since an accused has the constitutional right to remain

Silent, the fact he does so cannot be used against him to impeach his testi-

mony at trial in which he for the first time denies his guilt. The fact

there has been no previous denial is not admissible.

In this case, however, there are additional factors. First, no

——_— «

——_——

—_——

—— eee ee

ll te Allee

—_—— ee

No. 75AP-422 18

Objection was mace at trial upon these grourds. Rather, the only objection

was to questioning defendant concerning a conversation with his sister on

the grounds that this violated an agreement she would not be mentioned,

since she was not available to testi‘y. Secondly, the evidence of

defendant's guilt was very strong, almost to the point of being overwhelming.

Unless the testimony of both Westlake and Tinon is rejected, there cai be no

doubt of defendant's guilt. Thirdly, defencant testified that he, at one

point, desire’ to tell the police the same story, but that the police officer

never responded to defendent's request to come and sce him. Fourthly,

defendant testified ne was reluctant to involve his mother in the crime,

which his testimony at trial did. This factor alone furnishes a completely

plausible and compelling reason for defendant having remained silent until

his trial. Ths, the silence of defendant in this case could, at most, have

only limited weight as impeachment evidence.

Accordingly, in my view, the erroneous references to defendant's

silence were not prejudicial under the unusual Circumstances of this-case.

‘For this reason, I concur in the overruling of the second and eleventh

assignments of error.

With respect to the remaining assignments of error, I concur in

the majority opinion aud, likewise, concur in the judgment.

-5 6.

APPENDIX D

COURT OF COMMON PLEAS, FRANKLIN COUNTY, OHIO

CRIMINAL DIVISION

STATE OF OHIO :

PLAINTIFF

vs. : Case No. 74CR-12-2314 B

Carl Osborne, Jr. :

DEFENDANT

JUDGMENT ENTRY

The jury having previously found the defendant

guilty of aggravated murder and aggravating specifications,

the Court now considers the nature and circumstances of the

offense and the history, character, and condition of the offender.

Upon consideration of the report, testimony, other

evidence, statement of the offender, and arguments of counsel .

Submitted to the court pursuant to division (D) of Section 2929.03

R.C., the Court finds that none of the following mitigating

Circumstances, as set forth in division (B) of Section 2929.04,

R.C., has been established by a preponderance of the evidence:

(1) The victim of the offense induced or

facilitated it.

(2) It is unlikely that the offense would

have been committed, but for the fact that

the offender was under duress, coercion, or

strong provocation.

(3) The offense was primarily the product

of the offender's psychosis or mental

deficiency, though such condition is

insufficient to establish the defense of

insanity. ‘e

Accordingly it is mandatory under the law that the

Court impose the death penalty on the defendant for his violation

of Section 2903.01, R.C.

The jury having found defendant guilty of

kidnapping in Count No. 1 and guilty of aggravated murder

with specification No. 2 only, in Counts Nos. 2 and 3, the

Court elects to sentence as follows:

-5/.

Count No. 1: First Degree Felony, the sentence

is 4-25 years imprisonment. This sentence to run concurrently

with counts Nos. 2 and 3.

Counts Nos. 2 and 3: Aggravated Murder, the sentence

of death is hereby imposed to run concurrently with each other

and with Count No. l.

Defendant shall pay costs. Sentences shall be

executed in the esuscestese institutions under the Department

of Rehabilitation and Correction.

The sentence of death shall be executed in accordance

with Section 2949.22, R.C. Pursuant to Section 2949.23, R.C.

the date of execution of the death penalty is designated to

be the 2lst day of November, 1975.

APPENDIX E

JURY SUMWAONS

SHERIFF'S OFFICE

“ Columbus, Ohlo__ April 2.1975

~_—

STATE OF CHIO VS.

_ Carl Osborne wir. Case Nos. 74CR_ 12 22148

Sic or Medan,

| am camanded to summon you to be and cppear

before the Court of Common Pleas, Office of the Jury

Camlssion, Fifth Floor,: Franklin County Hal! of

Justice, 369 South High Street, Monday, May %

1975 at 8:30 A,/A, and then and there to serve as

eo Juror In and for Franklin County.

Hereln fall not under ponalty of low,

Respectfully yours,

tke Opera >

HARRY7y7 LERKEMER

Sheriff of FrenkiIn County

BEST COPY AVAILABLE — |

-59-

5C-2 EC Danzerrr Bacrucens, Pv sexes, Sraprorune, Omo

-~ , APPENDIX F

THE SUPREME COURT OF THE STATE OF OHIO

THE STATE OF OHIO, 19.17. TERM

City of Columbus. TO WIE °....2.2.-2- nnn dn, Mn

The State ofjOhio, \

a Appellee, | No....78- 953.

| APPEAL FROM THE COURT OF

~ APPEALS

Carl E. Osborne, Jr., | GOP ceca A cceanensnsen County

Appellant. /

This cause, here on appeal fron the Court of Appeals for... RANKL IN isiincanaa

County, was heard in the manner prescribed bi law. On consideration thereof, the

judgment of the Court of Appeals is affirmed for the reasons set forth in the

opinion rendered herein and it appearing to the Court that the date heretofore

fixed for the execution of the judgment and sentence of the Court of Common Pleas

is now past, this Court proceeding as required by law does hereby fix the 22nd day

of August, 1977, as the date for carrying said sentence into execution by the

Superintendent of the Southern Ohio Correctional Facility, or in his absence by

the Assistant Superintendent, in accordance with the statutes in such case made

and provided.

It is further ordered that a certified copy of this entry and a warrant

under the seal of this Court be duly certified to the Superintendent of the Southern

Ohio Correctional Facility and the Superintendent make due return thereof to the

Clerk of the Court of Common Pleas of Franklin County,

and it appearing that there were reasonable grounds for this appeal,it is ordered

that no penalty be assessed herein.

Tt de feerther ordered CRAL t0O..........00000ccccccsorsenceresorescosseccsccsoescees appellec...... recover

| | ace eR EN eT ae Se costs herein ex-

| pended; that a mandate be sent to the........... COMMON. PLEAS..COQURT. ........cccceseee

to carry this judgment into execution; and that a copy of this entry be certified to

the Clerk of the Court of Appeals for.........: PRANK DIN oc ceeaee County for entry.

I, Thomas L. Startzman, Clerk of the Supreme Court of Ohio, certify that the

foregoing entry was correctly copied from the Journal of this Court.

Witness my hand and the seal of the Court

- pe pn a Se PROF

r \ . Clerk

a ee ee ae ee Deputy

-60-

APPENDIX G

TILE SUPREME COURT OF TILE STATE OF OHLO

THE STATE OF 0110, 19/1. TERA

City of Columbus. ce June 22, 1977 |

The State of Ohio,

Appellee,

-9

Wo,..18-953 |

us.

MANDATE

Carl E. Osborne, Jr.,

Appellant.

To the Monorable.... cc cccc eee. __COMMON PLEAS COURT enenisianenmahbadinniinanctuaseiniadiliniaeiiiiatis

Within and for the County of... w RANK AR ...» Ohto, Greeting:

The Supreme Court of Ohio conimands you lo proceed without delay to

carry the following juddment in this cause into execution:

Judgment of the Court of Appeals affirmed for the reasons set forth in

the opinion rendered herein,

It is further ordered that execution date be set for Monday, August

22, 1977.

THOMAS L. STARTZMAN,

Clerk

snepuenuesiiniitiniinieiiiinauaeniininiiaiianiiaiais a

: —— Deputy

* RECORD OF COSTS

Docket Foe. oo ee ee B20; 00 Vaid by...Carl her

Pee Ga seo. S-o <0. oc0 “Aiveesveetensnasall a edna icbeaiiasue OR SO

Le a ne ene name reT SN. <5 Re AE ET A as OE

a... € 3, SESS ee FTE Ci cacccccnntstteimnnsnntimntaneagiainicnshiapibaiaiiin

Supplemental Record 6. Siccecccccceeeeeeeeeeeee PINE (ON i sicniscnscssrvncnnneeniagninienniesnaindipaapeeniinienkalinivions

ee SE 06a + 5s. een PORTE G0 tniceccnrcrcrnsnaiittineanininntiinidiineinpinedintanmngtinis

Sheriff's Cosls . 0... ( Mbeniéenimeeinciitiaiagini Paid Tt sccisnrscsicshimsinenediiindaiitninapeilamniiiaibiaaintaal . .

of}.

———— a

THE STATE OF OHIO,

— maa @.meseumtanelh

——_— SS

i APPENDIX H

19.!". TERM

City of Columbus.

July 28,° 1977

The State of Ohio, BP CG nccceseteraeeatrdiaenatinincestesndisiintennes

Appellee,

No.......46=953......

us.

Carl E. Osborne, Jr., ENTRY

Appellant.

= a, ( FRANKLIN COUNTY)

Upon consideration of the motion, filed by counsel for appellant,

"to stay execution of sentence pending the timely filing of a notice of

appeal or a petition for a writ of certiorari to the Supreme Court of

the United States, it is therefore

ORDERED that execution of sentence be, and the same hereby is, stayec

pending the timely filing of a notice of appeal or a petition for a

writ of certiorari to the Supreme Court of the United States.

It is further ORDERED that if a timely notice of appeal or a

petition for a writ of certiorari is filed to the Supreme Court of

the United States, this stay will automatically continue pending final

It is further ORDERED that the Clerk of this Court shall forthwith

send a certified copy of this Stay of Execution to the Superintendent of

the Southern Ohio Correctional Facility, who shall acknowledge receipt

thereof.

f=: ns

. - ,

. /

. . ‘)

: , i te j

. ' ‘ .

2 ‘ * ’ ‘

' - ° tte

“

CHIEF JUSTICE

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

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

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

IN WITNESS WHEREOF, I have hereunto subscribed

my name and affixed the seal of the Supreme Court

this..28th day Of .........-! A 19..27...

APPENDIX I

weg

Bae

& COURT OF TAR STATE OY OHIO

TUK STAT K OF 1710, |

(

Cily of Calsne bus. J

1944 pea

State of Ohio,

Appellee,

No, 76-953

ay.

, REHEARING

Carl E, Osborne, a

Appellant.

Leis ordered by the ¢ ON that rehearing in this Case is dented.

if if

A LHOMAS 1. STARTZMAN, Clerk Of lhe Suprense Coure of the State of Ohio,

(ly copicd from. the records of

lo heveby ceriisy that the foregoin$ entry wus corre:

sail Court, lo wit, from Journal |

IN OUWSITNESS WHUEREOK. | hace hereunto subseribed

“Why Hae aH agingd Lhe seul a, tie Mepareme Court

this, Sth day ef. July.

sclibaas sees, ee STARTZMAN - Ctepk

ATE Ey ee PO ar TG Deputy.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.