# Petition — Osborne v. Ohio > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0823%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 438 U.S. 910 ## Text T7- SPL eS 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 I, 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 10 10 12 12 14 7 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. i} ! i! | | 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 } i | | \ | } | iii. LLL eee ee | Table of Authorities (Continued) CONSTITUTIONS Constitution of the United States: PEE © GNwecncdavsueudenes 6beddcckenecdewctedeecccce —-—_ = -— 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 - 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- v) 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 determination of the case by that Court. © 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 me weg Bae me a4 wa =a ~ me wu ~~ .- a -- & COURT OF TAR STATE OY OHIO TUK STAT K OF 1710, | ( f 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. ~~ ' 7 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0823%3A1. Public record. Not legal advice.