Petition — Payne v. Ohio

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——— @& 4 44

Supreme Court, U. S }

‘

IN THE DEC 5 1976

Supreme Court of the United esenax, sn, c12R% |

OCTOBER TERM, 1978

no. €8-900

~

MAJOR EDWARD PAYNE,

Pettittoner,

VS.

STATE OF OHIO,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE OHIO SUPREME COURT

—=—————EEEeESESESESEESEeeeaeee_

BERNARD A. BERKMAN

BERKMAN, GORDON, KANCELBAUM AND LEVY

2121 THE ILLUMINATING BUILDING

55 PUBLIC SQUARE

CLEVELAND, OHIO 44113

(216) 781-5245

JAMES R. WILLIS

BOND COURT BUILDING

CLEVELAND, OHIO 44114

(216) 523-1100

Attorneys for Petittoner

‘ BROWNPRINT INC. — LEGAL DIVISION, CLEVELAND, OHIO 44113 (216) 621-2944

TABLE OF CONTENTS TABLE OF CONTENTS (CONT.)

Page Page

mn And Fourteenth Amendments

— V ,

; TABLE OF AUTHORITIES....... cetneewen Of The Action Of A State

OPINIONS BELOW....... gil ha ACR. sad 2 Appellate Court In

Altering The Charge

Originally Brought

Against An Accused In

The Course Of Affirming

His Conwviction...«... oesccccece 20

; JURISDICTION. ... ccc cece cceesvcccececs 2

QUESTIONS PRESENTED FOR REVIEW...... 2

map vache cn a 4 II. An Important Question,

PROVISION L eer rrr ere . Decided By The Lower

6 Courts In A Way Probably

STATEMENT OF THE CASE......cccccccces Not In Accord With Appli-

6 cable Decisions Of This

A. Procedural History.........-. Court, is Presented Con-

cerning The Constitutional

B. Facts

Validity, Under The Sixth

And Fourteenth Amendments,

7 Of The Action Of A State

Appellate Court In

Affirming A Criminal Con-

14 viction On The Basis Of

An Entirely Different

Theory Of The Case From

That Which The State

Advanced In The Trial

Court To Secure The

REASONS FOR GRANTING THE WRIT ge) ae ere ee ae 28

l. The Theft in Office

COMME GELOR. 0% 60 604008 oe ae

2. The Intimidation

CORDES, «0 ¢ b.06.00 46 oe 08

3. The Decisions of

the Lower Appellate

COUPER 6 648666 b O68 0 8 6-0 HE Ce a?

III. An Important Question,

Decided By The Lower

Courts In A Way Probably

Not In Accord With Appli-

cable Decisions Of This

Court, Is Presented Con-

cerning The Right Of An

Accused, Under The Sixth

And Fourteenth Amendments,

To Confront The Witness

ee ee ee 34

I. An Important Question,

Decided By The Lower

. Courts In A Way Probably

Not In Accord With Appli-

cable Decisions Of This

Court, Is Presented Con-

cerning The Constitutional

Validity, Under the Sixth

= £2 «@

—

TABLE OF CONTENTS (CONT. )

CONCLUSION... ccecceccces Terrrere eee

APPENDIX (separately bound)

Order of the Ohio Supreme

Court Denying Motion for

Rehearing......... worry ee ee Tee

Order of the Ohio Supreme

Court Dismissing Peti-

tioner's Appeal of Right........

Order of the Ohio Supreme

Court Overruling Peti-

tioner's Motion for

Leave to Appeal.....cccecceceses

Order of the Court of Appeals,

Eighth Appellate District,

Cuyahoga County, Ohio,

Overruling Petitioner's

Motion for Reconsideration......

Journal Entry of the Court

of Appeals, Eighth Appellate

District, Cuyahoga County,

Ohio, Affirming Petitioner's

CONVICELONS. ccccccccccccccccseccs

Opinion of the Court,

by Judge Patton... ...cccccccves

Concurring Opinion

Of Judge Corrigan..cccccccccce

Dissenting Opinion

of Judge JackSoOn......e..e6. eee

- iii -

TABLE OF CONTENTS (CONT. )

Excerpt from Petitioner's

Memorandum in Support of

Jurisdiction, filed in

the Ohio Supreme Court......... ,

Excerpt from Petitioner's

Memorandum in Support of

Application for Recon-

Sideration, filed in the

Court of Appeals, Eighth

Appellate District,

Cuyahoga County, Ohio...........

» dy «

84

TABLE OF AUTHORITIES

Cases Page

Barber v. Page, 390 U.S.

FED LEPOR) ccc ceac essence ceucseees ‘ 35

Bruton v. United States,

SP UeSs 145 [EPCS cc coer vv cus eee 35

California v. Green, 399

Ube 169. (PTO censcecdass cceeeoe 35

Chapman v. California,

SOO Uebe LE (ERT as cbedckenanwes 27,36

Cole v. Arkansas, 333

Vebe SPU. CANE caatumeceeasusaaeen 24,25,34

Coolidge v. New Hampshire,

SUS Uebs GER Cael el «+46 been eekGas 22

Faretta v. California,

G22 Uebe COO TERlOl<icceaceueenns 23

Katz v. United States,

3eF US. Fer Ceeetisccckes (eens 22

Pointer v. Texas, 380

US. 400 (LOGS) .ccccsdes Pre ey er 35

Russell v. United States,

3D U.S. 15m Teeenlunccenscenereea 23,25,

26,34

Constitutional Provisions

Sinth Amendment. «<<écoss6cec 3,4,19,

20,23,28,

34,35,36

Fourteenth AmenGment.<s «ssi seaeenuen ce Pir

20,23,28,

34,35, 36

Statutory Provisions

28 Wetete C1297 (5) osceacecdeaneneee es 2

Ohio Revised Code, Section 2921.41.. 1,4,6

2921.03.. 1,5,6,23

SUPREME COURT OF THE UNITED STATES

October Term, 1978

No.

MAJOR EDWARD PAYNE,

Petitioner,

STATE OF OHIO,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE OHIO SUPREME COURT

Major Edward Payne, petitioner, prays

that a writ of certiorari issue to review

the final judgment and decree of the Ohio

Supreme Court dismissing petitioner's appeal

as of right and overruling petitioner's _

motion for leave to appeal from the decision

of the Court of Appeals, Eighth Appellate

District, Cuyahoga County, Ohio, affirming

the petitioner's convictions of Theft in

Office, under Ohio Revised Code Section

2921.41, and Intimidation, under Ohio

Revised Code Section 2921.03. The final

judgment and decree of the Ohio Supreme

Court was originally entered on July 6,

1978. Petitioner's motion for rehearing

was denied on September 7, 1978 by the

Ohio Supreme Court.

OPINIONS BELOW

The Ohio Supreme Court rendered its

orders without opinion. Its orders in this

case are set forth in the separately bound

appendix to this petition, at 1 - 3. The

opinion of the Court of Appeals, Eighth

Appellate District, Cuyahoga County, Ohio,

which is unreported, is set forth in the

Appendix at 5-83. No opinion was delivered

in the Court of Common Pleas, Cuyahoga

County, Ohio, the trial court in this case.

JURISDICTION

The orders of the Ohio Supreme Court

dismissing petitioner's appeal as of right

and overruling his motion for leave to

appeal were issued on July 6, 1978. On

September 7, 1978, the Ohio Supreme Court

entered its order denying the petitioner's

motion for rehearing.

This petition seeks review of a final

judgment and decree rendered by the highest

court of the State of Ohio in which a

decision could be had, in a case in which

titles, rights, privileges and immunities

are specially set up and claimed by the

petitioner under the Constitution of the

United States. This Court has jurisdiction

to review the judgment and decree of the

Ohio Supreme Court in this case under 28

U.S.C. §1257(3).

QUESTIONS PRESENTED FOR REVIEW

I.

Where, in a state criminal prosecution

resulting in the petitioner's conviction,

there was no evidence to support one of the

elements of the crime as charged in the

indictment and the bill of particulars,

where the State assumed the burden of proving

that element and promised the jury that it

would prove that element beyond a reasonable

doubt, and where the trial court instructed

the jury, without objection by the State,

that such element was one of the essential

elements of the offense charged, was the

petitioner denied his Sixth and Fourteenth

Amendment rights to be informed of the charge

against him and to due process when a state

appellate court affirmed the petitioner's

conviction upon a determination that it had

been unnecessary for the State to allege and

attempt to prove such element?

Il.

Where, in a state criminal prosecution,

two of the three judges sitting on the state

appellate court to which the petitioner had

appealed his conviction determined that the

trial court had erroneously admitted certain

hearsay testimony, where that testimony had

constituted the most crucial evidence to

Support a fact which was central to the

State's entire theory of the case, and

where the petitioner had built his central

defense around his contention that such fact

did not exist, was the petitioner denied

his Sixth and Fourteenth Amendment rights

to be informed of the charge against him and

to due process when the judge who cast the

deciding vote in the state appellate court

determined that the error had been harmless,

because the State had not been required to

prove the disputed fact, as a result of

which determination the petitioner's con-

viction was affirmed on the basis of an

entirely different theory of the case from

that which the State had advanced in the

trial court to secure the conviction?

Iit.

Where, in a state criminal prosecution

brought against the petitioner, testimony

concerning the contents of a written state-

ment made by an unidentified and absent

declarant was admitted on a crucial point,

for the purpose of proving the truth of the

matter asserted in the written statement,

was the petitioner deprived of his Sixth

and Fourteenth Amendment right to confront

the witnesses against him?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, Amendment 6:

"In all criminal prosecutions, the

accused shall enjoy the right...to be

informed of the nature and cause of

the accusation; to be confronted with

the witnesses against him...."

United States Constitution, Amendment 14:

',..-nor shall any State deprive

any person of life, liberty, or pro-

perty, without due process of law...."

Ohio Revised Code, §2921.03:

"Intimidation.

(A) No person, knowingly and

by force or by unlawful threat of harm,

shall attempt to influence, intimidate

or hinder a public servant, party of-

ficial, or witness in the discharge of

his duty.

(B) Whoever violates this

section is guilty of intimidation, a

felony of the third degree."

Ohio Revised Code, §2921.41:

"Theft in Office.

(A) No public official or party

official shall commit any theft of-

fense, when either of the following

applies:

(1) The offender uses his

office, or permits, or assents to

its use, in aid of committing the

offense;

(2) The property or service

involved is owned by this or any

other state or the United States,

a municipality, or any political

subdivision, department, or agency

of any of them, or by a political

party, or is part of a political

campaign fund.

(B) Whoever violates this section

is guilty of theft in office, a

felony of the third degree.

(C) A public servant or party

official who is convicted of theft

in office is forever disqualified

from holding any public office,

employment, or position of trust

in this state.”

STATEMENT OF THE CASE

A. Procedural History

On November 17, 1975, Major Edward

Payne, the petitioner, was indicted by the

grand jury of Cuyahoga County, Ohio, on two

counts of Theft in Office, under Ohio Rev.

Code §2921.41, and two counts of Intimi-

dation, under Ohio Rev. Code §2921.03. A

jury trial held in the Court of Common Pleas

of Cuyahoga County, Ohio, in February, 1976,

resulted in petitioner's conviction on one

count of Theft in Office, which count had

charged him with having "...obtained for

his own use two 9-millimeter firearins, with

pearl handles, from property lawfully seized

by and in the possession of the Cuyahoga

County Sheriff's Department," and on one

count of Intimidation, which count had

charged the petitioner with intimidation of

Donald Campbell, a public servant, in the

discharge of his duty. Judgment of acquittal

was entered by the trial court on the other

charge of Intimidation, and the jury

acquitted the petitioner on the other charge

of Theft in Office. The trial court imposed

prison sentences of two to ten years and

three to ten years upon the petitioner for

his convictions, the sentences to run con-

currently.

On appeal, the pe-sitioner's convictions

were affirmed by a divided Court of Appeals

for the Eighth Appellate District, Cuyahoga

County, Ohio. The petitioner's subsequent

application for reconsideration was denied

by that court on March 21, 1978. Thereafter,

on July 6, 1978, the petitioner's appeal

as of right to the Ohio Supreme Court was

dismissed on the ground that no substantial

constitutional question was presented. At

the same time, that court overruled the

petitioner's motion for leave to appeal.

Major Payne's petition for rehearing was

denied by the Ohio Supreme Court on

September 7, 1978.

B. Facts

1. The Theft in Office Conviction

The petitioner was convicted of Theft

in Office upon a charge that he had con-

verted to his own use "...two 9-millimeter

firearms, with pearl handles, from pro-

perty lawfully seized by and in the

possession of the Cuyahoga County Sheriff's

Department." The evidence at trial revealed

that the petitioner, who in 1975 was a

Major in the Cuyahoga County Sheriff's

Department and the warden of the Cuyahoga

County jail, was selected by the Sheriff

to head a new division in the Sheriff's

Department known as Division 4 (Transcript,

p 565).-L/ As the head of Division 4,

Major Payne commandeered a considerable

number of raids on after-hours places

and cheat-spots in Cuyahoga County (Tr.

577), including one on April 19, 1975, at

10001 Cedar Avenue in Cleveland, Ohio (Tr. 505).

What occurred immediately after that raid was a

matter of great dispute in the trial court, a

as

References to the reporter's transcript

of proceedings in the trial court will

hereinafter be designated by the abbre-

viation "Tr."

dispute which went to the very heart of

this case,

The principal witngss for the State

was Donald W. Campbel1,2/ who had been

employed by the Sheriff's Department as

a Deputy Trainee in January, 1975 (Tr.

22). At the end of February or beginning

of March of that year, he began working

in Division 4, where his superior officer

was Major Payne, the petitioner ieee. BS).

He testified that in the early morning

hours of April 19, 1975, Major Payne

Planned and executed a raid at 10001 Cedar

Avenue (Tr. 25). Campbell himself did

not participate in that raid, but remained

at Division 4 (Tr. 25), which was located

On the fourth floor of the County Jail

(Tz. 511).

When the raiders returned that

morning, Campbell observed deputies carry

into Division 4 evidence that had been

seized at the raid (Tr. 27). He also

observed several weapons in Division 4

that morning, including two 9-millimeter

pearl-handled firearms which were in

plastic bags (Tr. 28-30). Campbell did

not specifically say, however, nor did

the prosecution ask him, whether or not

those two 9-millimeters had been part of

the evidence he had observed the deputies

Carry into Division 4, upon their return

from the Cedar raid.

Campbell testified that those two

pearl-handled firearms were taken out of

27

The Prosecution called a total of five

witnesses. With respect to the Theft

in Office charges, however, for all

Practical purposes, Campbell was the

State's Only witness.

the plastic bags and placed in a brown

paper bag by Detective Hosea Garner (Tr.

30). Shortly thereafter, Major Payne,

who had requested those firearms from

Detective Garner (Tr. 32), transported

the firearms out of the fourth-floor

office of Division 4 (Tr. 31).

Campbell was the only witness who

testified that the petitioner carried

two pearl-handled guns out of the fourth-

floor office of Division 4 on the morning

of April 19, 1975. By way of contrast,

numerous witnesses who participated in

the Cedar raid and who were present at

Division 4 following the raid, testified

that neither Major Payne nor Donald Campbell

was even in Division 4 on April 19 following

the raid. (Deputy Thornton, Tr. 626;

Deputy Burress, Tr. 661, 683; Deputy Bly,

Tr. 760, 761; Detective Garner, Tr. 1114,

1115; Marion Koszewski, Tr. 981). Detec-

tive Garner took the stand and flatly

denied that he gave Major Payne any fire-

arms on April 19 (Tr. 1115).

For several reasons, it was essential

to the State's case to prove that the two

pearl-handled firearms, allegedly carried

out of the fourth-floor office of Division

4 by Major Payne, had been seized, earlier,

by the Sheriff's Department at the Cedar

Avenue raid.

First, proof linking the pearl-

handled guns to the Cedar raid was an

essential link in the chain of circum-

stantial evidence upon which the State

relied to prove that when Major Payne

carried those guns out of the fourth-

floor office of Division 4, he intended

to convert them to his own use. Inasmuch

as the petitioner was the head of Division

4, the warden of the County Jail, anda

Major in the Sheriff's Department, it

obviously was no crime for him to handle

evidence in the Sheriff's custody, or to

transport evidence in the Sheriff's

custody from one room to another in the

County Jail Building, or to perform any

number of perfectly legitimate functions

in the course of his official duties

which would require him personally to

carry evidence in the Sheriff's custody

from one location to another. Since

there was no evidence at all to demon-

strate what the petitioner did with the

pearl-handled guns or where he transported

them after carrying them out of the

fourth-floor office of Division 4, the

State relied upon other evidence in its

attempt to prove that Major Payne carried

those guns out of the Division 4 office,

not in connection with any legitimate

official purpose he might have had as the

head of Division 4, but for the purpose

of converting those firearms to his own

personal use. That other evidence,

however, was entirely based on the

premise that the pearl-handled guns had

been seized by the Sheriff's Department

at the Cedar raid.

Donald Campbell testified that the

customary practice of Division 4 members

following a raid was to enter, in the

Sheriff's property book, under a heading

which includes the address of the place

raided and the date of the raid, a com-

plete list of each item seized on the

raid (Tr. 56-59). He also testified that

it was standard procedure for Division 4

members to include a complete list of all

items seized on a raid in the inventory

returned with the search warrant that

authorized the raid (Tr. 34-38). An

examination of the Sheriff's property

book revealed that the two pearl-handled

guns were not included in the list of

items seized at the April 19th Cedar

Avenue raid, however (Tr. 56-59). Simi-

larly, the two pearl-handled guns were

not included in the list of items entered

in the inventory returned with the search

Warrant which authorized the April 19th

Cedar raid (Tr. 34-38). Assuming that

the pearl-handled guns had, in fact, been

seized at the Cedar raid, the evidence

showed that Major Payne carried them out

of the fourth-floor office of Division 4

before the fact of their seizure at the

Cedar raid was recorded in writing either

in the Sheriff's property book or in the

inventory returned with the search warrant,

a fact which, under the State's view, was

inconsistent with his carrying those guns

out of the Division 4 office for some

legitimate function in connection with

his official duties as the head of

Division 4. Rather, under the State's

view, such evidence demonstrated that

Major Payne attempted to conceal the

existence of those pearl-handled firearms,

a fact consistent with the State's con-

tention that he intended to convert those

guns to his own use.

It was also essential for the State

to prove that the pearl-handled guns had

been seized at the Cedar raid in order

to demonstrate that the guns carried out

of the Division 4 office actually belonged

to the Sheriff's Department, thereby

ruling out the possibility that the guns

belonged to the petitioner.

Finally, it was essential for the

State to link the pearl-handled guns to

the Cedar raid in order for it to fulfill

the promises it had made to the jury in

opening statement and to prove its entire

theory of the case, which had been consis-

tently that Major Payne took for his own

use two pearl-handled guns that had been

lawfully seized by the Sheriff's Depart-

ment during the course of a raid on April

19, 1975, at 10001 Cedar Avenue.

The State introduced three pieces of

circumstantial evidence in its attempt to

prove that the pearl-handled firearms had

been seized at the Cedar raid. One such

piece of evidence was the testimony of

James Marino, a news reporter, who had

been present at the Cedar raid (Tr. 305).

He testified that Major Payne told him

that six handguns and one shotgun had

been seized at Cedar (Tr. 506). The

Sheriff's property book had entries for

Only four pistols and a shotgun under the

April 19th Cedar raid listing (Tr. 59).

Another piece of circumstantial evidence

linking the pearl-handled guns to the

Cedar raid was ae by the testimony

of Sims Goodman, Jr. He testified that

he was in the vicinity when the Cedar

raid occurred (Tr. 303-304). After the

raid was over, Goodman remained in the

area and observed two persons whom he

Knew come out from the direction of where

the raid took place (Tr. 307). They were

La

Goodman was an informant for the Cleveland

Police Department (Tr. 332), which, accord-

ing to Goodman, was "out to get Major

Payne" (Tr. 333), apparently because the

petitioner's raids on cheat-spots were

interfering with payoffs to Cleveland

policemen (Tr. 377). He admitted that

the police department enlisted him to

secure evidence against petitioner tet

334-335).

"high rollers" (big gamblers) named Ivan

Lapsley and Big Jordan (Tr. 307). Goodman

stated that on prior occasions he had seen

them carrying 9-millimeter automatic pistols

with snow white grips (Tr. 309-310). A

few days after the raid, Goodman observed

them Fe gaa i different firearms (Tr.

$113) .2 But the most crucial evidence

linking the guns to the Cedar raid was the

testimony of Donald Campbell, admitted

Over the petitioner's objection. Campbell

testified that there were yellow tags in-

Side the plastic bags which contained the

two pearl-handled firearms he had observed

in Division 4 (Tr. 29). Over defense

objection, Campbell was permitted to

testify that written on the tags was an

address--10001 Cedar Avenue (Tr. 29).

The evidence tending to prove that

no pearl-handled firearms had been seized

at the Cedar raid was both direct and

Substantial. Several witnesses who had

been present at the raid testified that

they saw no pearl-handled automatic pistols

there (Powell Caesar, Tr. 729-730; Deputy

Burress, Tr. 689; James Marino, Tr. 514;

.

" On cross-examination by appellant's trial

counsel, Goodman also testified that

Jordan told him, "that nigger Payne got

my gun." (Tr. 371). The Significance,

if any, of that hearsay testimony is

unclear, at best. Jordan was not arrested

at Cedar, and would have had no way of

knowing that Major Payne took his gun

from Division 4. Thus, if Goodman's

testimony is credited, it would appear

to indicate that Major Payne took

Jordan's gun directly from him; and that

the firearms Campbell saw the petitioner

remove from Division 4 were other fire-

arms,

-13-

a

Detective Garner, Tr. 1114-1115). Further-

more, both Big Jordan and Ivan Lapsley

denied ever having owned 9-millimeter

firearms with snow white grips (Tr. 855,

882).

Nevertheless, the petitioner was

found guilty of the charge that he had

converted to his own use two pearl-handled

guns that had been lawfully seized by the

Sheriff's Department.

2. The Intimidation Conviction

The petitioner was also convicted on

a charge that he had intimidated Deputy

Trainee Campbell, a public servant, in

the discharge of his duty. This convic-

tion was closely connected to the Theft

in Office charge. Indeed, the petitioner's

conviction of Intimidation was dependent

upon his conviction of Theft in Office,

because it was the alleged commission of

a theft offense by the petitioner which

gave him a motive and reason for the

alleged intimidation of Campbell.

Campbell testified that on July 3,

1975, while engaged in undercover work,

he was attacked by six men in front of a

downtown bar, thereby sustaining substan-

tial injuries (Tr. 106-107). Because of

those injuries, he was unable to work and

was confined tg his home throughout the

month of July.2/ During that month,

Campbell was visited several times by

S/

Campbell never did return to work as a

deputy sheriff; the Sheriff placed

Campbell on extensive disability after

he was injured, and on December 15,

1975, the Sheriff fired him (Tr. 120).

officers of the Sheriff's Department,

including Major Kulis, Marion Koszewski,

and Captain Brown (Tr. 108-110). Each of

these visitors desired to talk about

Major Payne's activities, and each also

requested that Campbell turn over to him

certain notes Campbell had been keeping 6

concerning irregularities in Division 4,

including the alleged theft of the two

pearl-handled guns by the petitioner, but

Campbell refused to satisfy their requests.

(Tr. 108, 111-112, 117, 187).2/

Campbell further testified that on

August 1, 1975, Major Payne invited Campbell

and his wife to meet him at a cocktail

lounge in Cleveland the following night

(Tr. 113). The petitioner told Campbell

that he had already arranged for Phillip

/

' These notes were never produced at trial.

Campbell testified that they were stolen

from his home in a burglary in November

Of 1975 (Tr. 152). Campbell stated that

nothing else was stolen in the burglary--

just his notes from his attache case

(Tr. 152). Judith Campbell, Donald

Campbell's wife, also testified that

the notes were stolen, but she stated

that the burglary occurred in October

of 1975 (Tr. 427).

7/

~ Koszewski and Brown, who testified for

the defense, disputed Campbell's testi-

mony. They testified that their visits

to Campbell's home were actually for

the purpose of interviewing Campbell

about his own activities (Tr. 987, 1040).

Vari, Campbell's partner, to be there as

well (Tr. 113). The next night, August 2,

1975, the Campbells and Vari drove together

to the cocktail lounge, arriving at about

9:00 p.m. (Tr. 114). They met Major Payne

in the lounge and sat down with him (Tr.

114). The conversation was pleasant, ini-

tially, but later in the evening it began

to focus on the visits Campbell had received

during the month of July from officers of

the Sheriff's Department (Tr. 116). Major

Payne asked if Campbell had been cooperating

with those members of the Sheriff's Depart-

ment (Tr. 116). When Campbell answered

that he was not cooperating, the petitioner

asked Campbell to relinquish "everything

he had" to the petitioner, a request with

which Campbell refused to comply (Tr. 116).

When Campbell persisted in his refusal to

relinquish his notes, which allegedly con-

tained information concerning the theft by

the petitioner of the pearl-handled guns

(Tr. 187, 111, 117), Major Payne allegedly

said to Campbell, "If you don't cooperate

with me, I'll make sure you never get to

court." (Tr. 119). In answer to Campbell's

inquiry as to what was meant by that state-

ment, the petitioner allegedly answered,

"Don't cooperate with me and you'll find

out." (Tr. 119). With that, the Campbells

and Vari stood up and departed, at about

12:00 or 12:15 a.m. (Tr. 119).-

07

Both Judith Campbell and Phillip Vari

agreed with Campbell's version of this

August 2 meeting, when they testified.

Defense witness Keldon Casey did not,

however. He testified that Major Payne

introduced him to the Campbells and Vari

that night at the Eastown (Tr. 937, 939),

that he sat down with the Campbells and

Vari until they left at about 2:00 a.m.

(Tr. 939), and that during that time there

was no conversation concerning the Sheriff's

Department (Tr. 945).

- 16-

The jury returned a verdict of guilty

on the charge that the petitioner on

August 2, 1975, intimidated Donald Campbell,

a public servant, in the discharge of his

duty.

C. The Decisions of the Lower Appellate

Courts

On appeal to the Court of Appeals,

Eighth Appellate District, Cuyahoga

County, Ohio, Major Payne advanced a

number of arguments pertinent to the

present petition.

First, he argued that the evidence

had been insufficient as a matter of law

to prove one of the elements of the crime

of Theft in Office, as that crime had been

charged in the indictment. In particular,

the indictment had charged that the peti-

tioner had taken two pearl-handled guns

that had been "lawfully seized" by the

Sheriff's Department. Similarly, the Bill

of Particulars alleged that the guns had

been lawfully seized. The prosecutor, in

his opening statement, promised the jury

that he would prove that the guns had been

lawfully seized (Tr. 19-20). The trial

court instructed the jury that one of the

elements of the crime charged was that

the guns had to have been lawfully seized

(Tr. 1289). The trial court defined for

the jury what constituted a lawful seizure

(Tr. 1291). These instructions were given

without objection by the State. The

petitioner argued in the court of appeals

that there had been a failure of proof on

that element. But the court of appeals

ruled that it had been altogether unneces-

sary for the State to allege and prove,

as one of the elements of the crime, the

= 37 =

lawfulness of the seizure of the pearl-

handled guns.—’ Accordingly, that court

ruled, it could affirm petitioner's con-

viction notwithstanding the absence of proof

to support what the State, the trial court

and the defense understood to be one of the

elements of the crime. In his application

for reconsideration in the court of appeals,

and in his memorandum in support of juris-

diction filed in the Ohio Supreme Court,

the petitioner argued that the affirmance

of his conviction in this fashion by the

court of appeals deprived him of his con-

stitutional rights to be informed of the

charges against him and to due process (See

App. at 110, 114-119, 85-89). This argument

was rejected without opinion by both courts,

however.

The petitioner also argued in his ini-

tial brief in the court of appeals that the

trial court had erred in admitting Campbell's

Oral testimony that written on the yellow

tags which were in the plastic bags con-

taining the pearl-handled guns was the

address 10001 Cedar Avenue. The petitioner

noted that that oral testimony was the

most important piece of evidence linking

the pearl-handled guns to the Cedar raid,

and was, therefore, central to the State's

case. Two of the three court of appeals'

judges agreed that the trial court had

erred in admitting that hearsay testimony

(See Judge Corrigan's concurring opinion

at App. 24, and Judge Jackson's dissenting

Opinion at App. 45-54). However, only the

dissenting judge found the error to be

prejudicial. The concurring judge found

the error to be harmless, a conclusion

9

2/ gee pp. 15-16 of the separately bound

Appendix to this petition for a writ

of certiorari.

which was based on two premises. First, the

concurring judge determined that the error

was not of constitutional dimension and,

thus, did not have to be harmless beyond a

reasonable doubt (See App. 24). Second, the

concurring judge agreed with the judge who

wrote the opinion for the court that it

was not essential to the State's case that

it prove the guns had been seized at the

Cedar raid, notwithstanding the fact that

the State's entire entory of the case had

always been that the petitioner had stolen

two pearl-handled guns seized by the

Sheriff's Department at 10001 Cedar Avenue

on April 19, 1975, and notwithstanding the

fact that the petitioner had built his

central defense around his contention that

no pearl-handled guns had been seized at

the Cedar raid (See App. 24, 18, 13). In

his application for rehearing in the court

of appeals, and in his memorandum in support

of jurisdiction in the Ohio Supreme Court,

the petitioner argued that, contrary to the

conclusion of the concurring judge in the

court of appeals, the admission by the

trial court of Campbell's hearsay testimony

was an error of constitutional dimension in

that it deprived the petitioner of his

Sixth and Fourteenth Amendment right to

confront the witnesses against him (See

App. 111-114, 90-98). The petitioner

further argued that by affirming his con-

viction on the premise that the State had

not been required to prove that the pearl-

handled guns had been seized at the Cedar

raid, the court of appeals deprived the

petitioner of his Sixth and Fourteenth

Amendment rights to be informed of the

charge against him and to due process in

that the affirmance of petitioner's con-

viction was based upon an entirely different

theory of the case from that which the

State had advanced in the trial court to

secure the conviction (See App. 114-119,

99-105). These arguments were also rejected

without opinion by both courts, however.

Finally, the petitioner argued in his

initial brief in the court of appeals and

in his memorandum in support of juris-

diction in the Ohio Supreme Court that any

error necessitating a reversal of his

Theft in Office conviction also required

a reversal of his conviction of Intimi-

dation, because of the close connection

between the two charges (See App. 106-109;

11-12). In view of the fact that the court

Of appeals had found the petitioner's con-

viction of Theft in Office to be free of

error, it rejected this argument, however,

as did the Ohio Supreme Court, implicitly,

when it refused to hear petitioner's appeal.

REASONS FOR GRANTING THE WRIT

is

An_ Important Question, Decided By

The Lower Courts In A Way Probably

Not In Accord With Applicable

Decisions Of This Court, Is Pre-

sented Concerning The Constitu-

tional Validity, Under The Sixth

And Fourteenth Amendments, Of The

Action Of A State Appellate Court

In Altering The Charge Originally

Brought Against An Accused In The

Course Of Affirming His Conviction.

The indictment returned by the grand

jury in this case charged the petitioner,

in one count, with having "obtained for his

Own use two 9-millimeter firearms with pearl

handles on same, from property lawfully

seized by and in possession of the Cuyahoga

County Sheriff's Department...." (Emphasis

added). The Bill of Particulars supplied

to the petitioner repeated this same

language, informing him that the State

intended to prove, as an element of the

charge, that the pearl-handled firearms

had been lawfully seized by the Sheriff's

Department. In its opening statement to

the jury, the State promised that it would

prove beyond a reasonable doubt that the

pearl-handled guns had been lawfully seized

by the Sheriff's Department (Tr. 19-20).

The trial court instructed the jury that

one of the five elements of the offense

with which the petitioner was charged was

that the pearl-handled guns had to have been

lawfully seized, and that before the jury

could return a guilty verdict, it had to

find that each of the five elements had

been proven by the State beyond a reason-

able doubt (Tr. 1288). The trial court

elaborated on this element of the crime

charged by defining for the jury what

constituted a lawful seizure (Tr. 1291).

At no time did the State object to the

instructions given to the jury by the trial

court. The trial court, without objection

by the State, caused verdict forms to be

prepared and submitted to the jury in

which the verdict form for "guilty" of

theft in office included a finding that

the guns had been lawfully seized. It was

that verdict form which the jury signed,

thereby representing to the petitioner

that it had found beyond a reasonable doubt

that the guns had been lawfully seized (Tr.

1300). In short, the State and the trial

court, by repeated affirmative actions,

led the petitioner to believe that the

lawful seizure of the guns was one of the

essential elements of the crime with which

he was charged and that, in order to escape

conviction, he need only raise a reasonable

doubt as to the existence of that element

or, in the event of an adverse result, he

need only demonstrate to the court of

appeals that the evidence was insufficient

to prove that element in order to obtain a

reversal of his conviction.

There was a total failure of proof,

however, that the two pearl-handled guns

had, in fact, been lawfully seized. The

State was unable to offer a single shred of

evidence concerning who seized those guns,

or the manner and circumstances under which

those guns had been seized.

To be sure, the State attempted to

fulfill its promise to the jury that it

would prove the element of lawful seizure.

The State introduced a search warrant that

had been obtained by Deputy Edward Thornton

prior to the April 19th raid at 10001 Cedar

Avenue (Tr. 38), but that search warrant

did not authorize the seizure of any fire-

arms at 10001 Cedar Avenue (State's Exhibit

1-D). Thus, assuming that the two pearl-

handled guns had been seized at the Cedar

raid, as the State contended, that seizure

was a warrantless seizure, and presumptively

unlawful.

This Court has consistently held that

warrantless searches and seizures are un-

lawful, except in a few specifically estab-

lished and well-delineated situations.

Coolidge v. New Hampshire, 403 U.S. 443

94-455 (1971); Katz v. United States, 389

U.S. 347, 356 (1967). Inasmuch as there

was a total absence of evidence in the

present case concerning the manner or cir-

cumstances of the seizure of the two pearl-

handled guns, no inferences that the seizure

of the guns was authorized by an exception

to the warrant requirement were possible.

«= 92 «

Nor did the court of appeals, in

rejecting petitioner's argument that there

had been a failure of proof of the element

of lawful seizure, in any way intimate

that the State had introduced any evidence

to prove that the seizure of the guns had

been lawful. Rather, the court of appeals

concluded that in order to convict the

petitioner of Theft in Office under Ohio

Revised Code Section 2921.41, it had been

unnecessary for the State to allege and

attempt to prove that the guns had been

lawfully seized by the Sheriff's Department;

consequently, the petitioner's conviction

could be upheld without regard to the fact

that the State had failed to prove the

lawfulness of the seizure (See App. 15-16).

But as Judge Jackson of the court of appeals

noted in dissent, "...the fact that the

State of Ohio could have prosecuted the

[petitioner] for a crime against 'mere

possession' does not change the fact the

the State did prosecute the [petitioner]

for a crime against ‘lawful possession’.

(Emphasis in original; See App. 34-35).

The Sixth Amendment, made applicable

to the states by way of the Fourteenth

Amendment, Faretta v. California, 422 U.S.

806 (1975), entitles an accused to fair

notice of the specific charge against which

he must defend, and entitles him to a

charging instrument which is not mis-

leading, but is sufficiently certain, un-

ambiguous and precise to enable him to

prepare a meaningful defense and avoid

surprise. Russell v. United States, 369

U.S. 749 (1962). In the present case,

that fundamental right was denied peti-

tioner when the court of appeals ruled

that the State had not been required to

prove what the State time and time again

represented to the petitioner it would

prove.

- 23 -

This Court's decision in Cole v.

Arkansas, 333 U.S. 196 (1948), is instruc-

tive on this issue. There the petitioners

had been convicted under a provision of an

Act of the Arkansas legislature which pro-

hibited the promotion or encouragement of

any unlawful assemblage at or near a labor

dispute. In the trial court, the case had

been tried as an offense under that pro-

vision of the Act, and the jury had been

instructed under that provision of the Act.

The State Supreme Court upheld the convic-

tions, however, without considering the

defendants' attacks on the constitutionality

of that particular provision of the Act,

by holding that the conviction could be

sustained under another provision of the

same Act, which prohibited the use of force

or violence to prevent any person from

engaging in any lawful vocation. The State

Supreme Court reasoned that it could uphold

the convictions on this basis because the

information pursuant to which the defendants

had been charged included an allegation

that the defendants had used force or vio-

lence to prevent an individual from working.

This Court reversed, holding that the

affirmance of petitioners' convictions

under a different provision from the one

under which they had been charged violated

the most fundamental principles of due

process--the rights of an accused to be

informed of the specific charge against

him and to have the opportunity to be

heard in a trial of the issues raised by

that charge. At 333 U.S. 202, this Court

stated:

",..To conform to due process of

law, petitioners were entitled

to have the validity of their

convictions appraised on con-

sideration of the case as it

was tried and as the issues

were determined in the trial

court."

= 24-

Similar concerns caused this Court to

reverse petitioners’ convictions in Russell

v. United States, supra, on the ground that

the indictments that had been returned

against the petitioners failed to apprise

them with sufficient particularity of the

charges against which they were required to

defend. At 369 U.S. 766, this Court stated:

..-A cryptic form of indictment

in cases of this kind requires

the defendant to go to trial

with the chief issue undefined.

It enables his conviction to

rest on one point and the

affirmance of the conviction

to rest on another. It gives

the prosecution free hand on

appeal to fill in the gaps of

proof by surmise or conjecture.

The Court has had occasion

before now to condemn just

such a practice in a quite dif-

ferent factual setting. Cole

v. Arkansas, 333 U.S. 196, 201-

202, 68 S.Ct. 514, 517, 92 L.Ed.

644." (Emphasis added).

The instant case is of the same kind.

The court of appeals, by its affirmance,

and the Ohio Supreme Court, by its refusal

to hear the petitioner's appeal, excused

the State's failure to prove a material

allegation of the indictment, which the

trial court identified to the jury as an

essential element of the crime charged, by

altering the charge brought against the

petitioner after the verdict had already

been returned. As Judge Jackson of the

court of appeals noted in his dissenting

opinion, "In circumstances such as these,

where the State failed to give the accused

proper notice of what it did ultimately

- 25 -

prove, and failed to prove what it gave the

accused notice of,...Constitutional pro-

visions of this state and the nation

require reversal. "10 (See App. 45).

Moreover, as the petitioner argued in

the court of appeals and in the Ohio Supreme

Court, the prejudicial effect of the con-

stitutional error committed by the lower

courts was not confined merely to the

Theft in Office charge; that error tainted

the petitioner's conviction of Intimidation

as well, because of the close connection

between the two charges.

The petitioner's Intimidation con-

viction was based on a meeting which took

place on August 2, 1975 (Tr. 114). During

the course of that meeting, the petitioner

allegedly asked Deputy Trainee Campbell to

relinquish certain notes that Campbell had

been keeping (Tr. 116). When Campbell

refused to give up those notes, the peti-

tioner allegedly threatened him (Tr. 119).

10/

— The affirmance of petitioner's convic-

tion in this fashion also implicates

Double Jeopardy concerns. In order to

satisfy constitutional requirements, a

charging instrument must be sufficiently

definite to demonstrate with accuracy

the extent to which an accused may plead

a former acquittal or conviction in the

event any proceedings are later insti-

tuted against the accused for a similar

offense. Russell v. United States,

Supra. When an appellate court alters

the elements of the charge after con-

viction, however, the original charging

instrument no longer fulfills this con-

stitutional mandate, and the accused

may well be exposed to jeopardy again.

- 26 -

It was that threat which formed the basis

of petitioner's conviction for Intimidation,

and it was what Campbell's notes supposedly

contained that prompted the petitioner to

level that threat. The notes Campbell had

been keeping concerned irregularities he

had observed in Division 4, including the

removal by petitioner from Division 4 of

the two pearl-handled firearms on April 19,

L975 (S00 Tr. L867, dik, 117).

Thus, the close connection between

the petitioner's conviction of Theft in

Office and his conviction of Intimidation

is apparent. The petitioner's alleged

conduct in committing Theft in Office in

Campbell's presence gave the petitioner a

reason and motive for allegedly threatening

Campbell when Campbell demonstrated an

intention to use the notes he had allegedly

made of the theft against the petitioner.

Remove that reason and motive, however, and

a different result would in all likelihood

obtain with respect to the Intimidation

charge.

As a consequence, any constitutional

error committed by the courts below with

respect to the Theft in Office charge was

prejudicial to the petitioner on the Inti-

midation charge as well. At the very least,

it cannot be concluded that such errors

were harmless with respect to the Intimi-

dation conviction beyond a reasonable doubt.

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

An important constitutional question

which was probably wrongly decided by the

lower courts is presented by this petition

concerning the right of an accused not to

have the charge brought against him altered

after verdict by a state appellate court

which is asked to review his conviction.

The petitioner, therefore, urges this Court

to review his two convictions on certiorari.

ae

If.

An Important Question, Decided

By The Lower Courts In A Way

Probably Not In Accord With

Applicable Decisions Of This

Court, Is Presented Concerning

The Constitutional Validity,

Under the Sixth and Fourteenth

Amendments, Of The Action Of A

State Appellate Court In Affirming

A Criminal Conviction On The

Basis Of An Entirely Different

Theory Of The Case From That

Which The State Advanced In The

Trial Court To Secure The

Conviction.

Donald Campbell, the only witness who

testified that the petitioner carried two

pearl-handled firearms out of the fourth-

floor office of Division 4, stated that

the guns were in plastic bags when he

observed them in Division 4 on April 19,

1975 (Tr. 29). He further testified that

inside the bags along with the guns were

tags which had markings on them (Tr. 29).

Over defense objection, the following tes-

timony was elicited from Campbell:

"Q. Was there any address

noted on the markings

of the evidence bag?

"A. 10001 Cedar Avenue."

(Tr. 29).

This testimony was extremely vital, as it

was by far the most important testimony in

the entire case on the issue of whether or

not the pearl-handled guns had been seized

by the Sheriff's Department at the Cedar

Avenue raid.

- 28 -

In his initial brief in the court of

appeals, the petitioner argued that the

admission of this hearsay testimony had

been prejudicial error, requiring a

reversal of his convictions. In that

court, two of the three judges who sat on

the panel which heard this case agreed

that Campbell's testimony constituted

inadmissible hearsay which should have been

excluded by the trial court. Only Judge

Jackson, who dissented, however, found the

error to be prejudicial (See App. 45-54).

Judge Corrigan, who cast the deciding vote,

agreed, in his concurring opinion, that

error had been committed, but concluded

that it was harmless error (See App. 23-24).

Judge Corrigan's finding of harmless error

was based upon his determination that the

error was not of constitutional dimension

and upon his agreement with the opinion of

the court that it had been unnecessary for

the State to link the pearl-handled guns

to the Cedar raid (See App. 24). In his

application for reconsideration in the

court of appeals and in his memorandum in

Support of jurisdiction in the Ohio

Supreme Court, the petitioner noted that

the State's entire theory of the case had

always been that the guns the petitioner

allegedly had pilfered were two pearl-

handled guns seized at th» Cedar raid.

The petitioner argued that by affirming

his conviction on the entirely new theory

that the State had been under no obli-

gation to connect the guns to the Cedar

raid, the court of appeals had deprived

him of his constitutional rights to be

informed of the charge against him and to

due process. (See App. 114-119, 99-105).

The petitioner renews that argument here.

- 29 -

Until the court of appeals announced : "The evidence will further show,

its initial decision in this case on ladies and gentlemen, that the

February 28, 1978, the petitioner had items that were seized from

every legitimate reason to believe that that address were brought back

his convictions could be upheld only if by the Sheriff's personnel to

there was sufficient competent evidence the property room area of

in the record to show that the State had Division 4, the fourth floor

fulfilled the promises it had made to the of County Jail, where it was

jury in its opening statement that it to be inventoried and entered

would prove the following facts in support into the property room to be

of its theory of the case beyond a reason- held pending any court case.

able doubt:

"The evidence will further re-

; . : flect, ladies and gentlemen,

that on this occasion in the

"The evidence will show that at early morning hours of April

this time an alternate site for 19, 1975, the defendant in

a raid was decided upon, and this case, Major Payne, re-

that being 10001 Cedar Avenue quested of Detective Garner,

in the City of Cleveland. There who is an employee and along

was a -- no, there was not a on the raid at the time, made

search warrant for this parti- a request for two 9-millimeter

cular address, but it was an Browning firearms that had

alternate site for a raid on been seized at the raid on

this particular occasion. Cedar and were in the property

room of Division 4 and as yet

"The evidence will show that to be inventoried, and this

Major Payne, the defendant, and request was made for these

other employees of the Sheriff's firearms for his own use.

Department did go out in the

early morning hours of April "The evidence will further show

19th and did raid this estab- that these two firearms were

lishment, and made several taken by Major Payne and he

arrests and seized many items left the building with these

of evidence, such as gambling two pistols.

paraphernalia, money, liquor,

and some weapons. "The evidence, ladies and gentle-

men of the jury, will further

"The evidence will show, ladies reflect that the search warrant

and gentlemen, that seized at return that was filed and the

this particular address were inventory that was filed with

six handguns and one shotgun, the court and the property book

a long one.

- 30 = - 31-

that is filed and kept as a

matter of record by the Sheriff's

Department indicate that on this

particular night in question, at

this particular raid, there are

entries for four handguns and one

shotgun.

"The evidence will further show,

ladies and gentlemen, that there

is no entry made for the two 9-

millimeter pistols, the Browning

firearms, either on the inventory

that was filed as a result of

this raid or they do not appear

in the evidence book kept by the

Sheriff's Department."

* * *

"We, the State of Ohio, have the

burden of proof and we accept

that burden."

* * *

"We will further prove to you

beyond a reasonable doubt that

on or about April 19, 1975, in

the County of Cuyahoga, Major

Edward Payne unlawfully and pur-

posely, while being a public

official, used his office in the

aid of committing a theft offense;

that he knowingly and purposely

obtained for his own use two 9-

millimeter firearms with pearl

handles on same from property

lawfully seized by and in the

possession of the Cuyahoga County

Sheriff's Department." (State's

opening statement, Tr. 11-13; Tr.

19-20) (Emphasis added).

~

When the court of appeals rendered

its decision, however, the petitioner was

informed that he had been sadly mistaken.

That court upheld his conviction based on

its determination that it had been al-

together unnecessary for the Stare to prove

that the pearl-handled firearms had been

seized at the Cedar raid. By ruling that

it was wholly unnecessary for the State to

prove that the guns had been seized at the

Cedar raid, and by ruling that it was

wholly unnecessarv for the State to prove

that the seizure of those guns had been

lawful and, indeed, by effectively ruling

that the State was not even required to

prove that the guns had come into pos-

session of the Sheriff's Department by

means of a seizure at all, the court of appeals

affirmed the petitioner's convictions

on the basis of an entirely different

theory of the case from that upon which

the State relied in the trial court to

secure the conviction.

Indeed, the issue of whether or not

two pearl-handled guns had been seized at

the Cedar raid was one of the most hotly

contested issues in the entire trial. The

State devoted a major part of its trial

effort to an attempt to prove that two

pearl-handled guns had been seized at

Cedar. The major thrust of the defense

at trial was that no pearl handled firearms

had ever been. seized at the Cedar raid,

and that the pearl-handled guns were

nothing more than the creation of a biased,

bitter and uncorroborated Donald Campbell.

The petitioner submits that, in the

face of such a record, the court of appeals'

determination that it had been unnecessary

for the State to prove to the jury its

entire theory of the case and its affir-

mance of petitioner's convictions based

on an entirely new theory of the case, a

theory of which the petitioner had never

previously been apprised, deprived him of

his constitutional rights to be informed

of the specific charge against him and to

due process of law. Just as the petitioners

in Cole v. Arkansas, 333 U.S. 196 (1948),

the petitioner here was entitled, as a

matter of due process of law, "...to have

the validity of [his] convictions apprised

On consideration of the case as it was

tried and as the issues were determined

in the trial court." Id., at 333 U.S. 202.

The petitioner had a constitutional right

to be afforded notice of the charge against

him in terms sufficiently inelastic to pre-

clude his conviction from resting on one

point while the affirmance of that con-

viction rested on another. Russell v.

United States, 369 U.S. 749, 766 (1962).

The decisions of the lower appellate

courts deprived the petitioner of those

rights, however. As a result, not only is

the petitioner's conviction of Theft in

Office tainted by constitutional error,

but the petitioner's closely connected

conviction of Intimidation is so tainted

as well. Accordingly, petitioner urges

this Court to review this substantial con-

Sstitutional question on certiorari.

Iii.

An Important Question, Decided By

The Lower Courts In A Way Probably

Not In Accord With Applicable

Decisions Of This Court, Is Pre-

sented Concerning The Right Of An

Accused, Under The Sixth And

Fourteenth Amendments, To Con-

front The Witness Against Him.

As previously noted, two of the three

judges who heard this case in the court of

appeals agreed with the petitioner's

- 34 -

contention that Campbell's oral testimony

that the address 10001 Cedar Ave. was

written on the tags he observed in the

plastic bags containing the pearl-handled

guns should have been excluded by the

trial court. The petitioner's conviction

was, nevertheless, affirmed on the basis

of concurring Judge Corrigan's conclusion

that the error was harmless. This con-

clusion was based, in part, upon his deter-

mination that the erroneous admission of

Campbell's hearsay testimony was not an

error of constitutional proportion, a

determination which permitted him to apply

a less exacting standard of review in

assessing the prejudicial effect of the

admission of that testimony (See App. 24).

In his application for reconsideration in

the court of appeals and in his memorandum

in support of jurisdiction in the Ohio

Supreme Court, the petitioner argued that,

under the circumstances of this case, the

admission of Campbell's hearsay testimony

was, indeed, error of constitutional

dimension, in that it deprived the peti-

tioner of his Sixth and Fourteenth Amend-

ment right to confront the witnesses

against him (See App. 111-114, 90-98.

At the core of the protection afforded

by the Confrontation Clause of the Sixth

Amendment, made applicable to the states

by way of the Due Process Clause of the

Fourteenth Amendment, Pointer v. Texas,

380 U.S. 400 (1965), is the guarantee that

the accused will be afforded the oppor-

tunity to cross-examine the witnesses

against him face to face in front of the

jury chosen to pass upon his innocence or

guilt. Barber v. Page, 390 U.S. 719 (1968);

Bruton v. United States, 391 U.S. 123

(1968); Pointer v. Texas, supra. As this

Court stated in California v. Green, 399

U.S. 149 at 161 (1970):

- 35 -~

"...We note that none of our

decisions interpreting the

Confrontation Clause requires

excluding the out-of-court

statements of a witness who

is available and testifying

at trial. The concern of

most of our cases has been

‘focused on precisely the oppo-

site situation - situations

where statements have been

admitted in the absence of

the declarant and without any

chance to cross-examine him

at trial...." (Emphasis added).

In the instant case, Donald Campbell

was permitted to testify, over objection,

as to an out-of-court written statement,

made by an unidentified declarant, to the

effect that the pearl-handled firearms had

come from the Cedar raid. Because the peti-

tioner never had the opportunity to confront

and cross-examine the author of that crucial

out-of-court written statement, the trial

court's error in allowing that hearsay

testimony to be heard and considered by

the jury was error of constitutional pro-

portion under the Sixth and Fourteenth

Amendments.

Because of the importance of linking

the pearl-handled guns to the Cedar raid,

see, Supra, at 9-12, the admission of

Campbell's oral testimony, in derogation

of the Confrontation Clause, was extremely

prejudicial with respect to the charge of

Theft in Office. Furthermore, because of

the previously noted close connection be-

tween the Theft in Office charge and the

Intimidation charge, the error was pre-

judicial as to the Intimidation charge as

well. See Chapman v. California, 386 U.S.

18 (1967).

> ee a a

Accordingly, this Court ought to

review the petitioner's convictions because

of the petitioner's serious constitutional

claim under the Confrontation Clause which

was rejected by the court of appeals and

by the Ohio Supreme Court.

CONCLUSION

A careful reading of the thorough,

cogent and persuasive dissenting opinion

delivered by Judge Jackson of the court of

appeals in this case (see App. 28-83)

demonstrates clearly both the injustice

suffered by petitioner in the lower courts

and the substantiality of the constitutional

questions presented by this petition.

Accordingly, petitioner respectfully urges

this Court to grant the writ of certiorari

and accept this case for review.

Respectfully submitted,

BERNARD A. BERKMAN

BERKMAN, GORDON, KANCELBAUM and LEVY

2121 The Illuminating Building

55 Public Square

Cleveland, Ohio 44113

(216) 781-5245

JAMES R. WILLIS

Bond Court Building

Cleveland, Ohio 44114

(216) 523-1100

Attorneys for Petitioner

December, 1978