Petition — Walker v. Ohio
Supreme Court brief1979
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Supreme Court U,
ILED”
MAR 2 1979
& RODAK, JR., CLERK
Supreme Court of the United States
October Term, 1978
encase #8-13862
RAYMOND WALKER,
Petitioner,
V.
STATE OF OHIO,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
To the Supreme Court of Ohio
ERNEST P. Mansour
ELI MANnos
Davin B. CATHCART
Mansour, Gavin, GERLACK & MANos
Co., L.P.A.
2150 Illuminating Building
Cleveland, Ohio 44113
STANLEY E. ToLuiver
1835 Forest Hills Boulevard
East Cleveland, Ohio 44112
Counsel for Petitioner
March 1, 1979
THE GATES LEGAL PUBLISHING ©O., CLEVELAND, OHIO—TEL. (216) 621-5647
TABLE OF CONTENTS
NESS SL 1
Jurisdiction ....... sewssncensssncenesnnenessncsnesessenssnnsnsssweensseees 1
Questions Presented For Review ......................cccccseeceeeeeeee 2
Constitutional Provision Involved ...............2.2...22....:.-000-+- 2
Nee on. cccccseccccensnccetoveses 2
Reasons for Granting the WYit -......................:c.scescesseeeeeeeees 8
1. The Decision Below Is in Conflict With Decisions
of This Court and With Fundamental Justice in
Upholding a Conviction Which Is Devoid of Evi-
dentiary Support ..................... ; 8
2. The Decision Below Conflicts With Decisions of
This Court Which Have Held That an Accused
Is Denied Due Process of Law Where the Atmo-
sphere in and Around the Courtroom Is So Hos-
tile As to Interfere With the Trial Process .......... 12
EES ESTES SR 24
Appendix:
Order of the Ohio Supreme Court Denying Petition
for Rehearing (December 7, 1978) ........................ 25
Opinion of the Ohio Supreme Court (July 26,1978) 26
Judgment Entry of the Court of Appeals (June 29,
el cittnisteestncseechsnhertimeesevesecercesseeeesceees 43
Opinion of the Court of Appeals (June 29, 1977) .... 44
Journal Entry of the Court of Common Pleas (Sep-
Teen eee ee ee sa scedenncascorvencsccors 48
TABLE OF AUTHORITIES
Cases
Chambers v. Flondie, 309 U.S. 227 (1940) oo... 24
Craig v. Harvey, 331 U.S. 367 (1947) oe ecececececececeeecoeee 13
Estes v. Texas, 381 U.S. 735 (1965) ..............ccecccccccceeeees 13, 24
Frank v. Mangum, 237 U.S. 309 (1915) oo. 13
Freeman v. Zahradnick, 429 U.S. 1111 (1977) 2... 11,12
Harris v. United States, 404 U.S. 1232 (1971) 0.000000... 8
In re Murchison, 349 U.S. 1383 (1955) 2... cceccceeececeeeee 13
In re Winship, 397 U.S. 358 (1970) ... eee
Irwin v. Dowd, 366 U.S. 717 (1960) ooneeeeceeeccceececeseeceeee. 13, 24
Moore v. Dempsey, 261 U.S. 86 (1923) ooo.eceeccecceceeceeeeeee 13
Murphy v. Florida, 421 U.S. 794 (1974) occ eccecceccccceeeceeee 14
Sheppard v. Maxwell, 384 US. 333 (1966) .................... 13, 24
State v. Klein, 50 Ohio St. 2d 11 (1977) a.
Thompson. v. Louisville, 362 U.S. 199 (1960) ........ 8,10, 11,12
Turney v. Ohio, 273 U.S. 510 (1927) ....n.ceccecececcccccccccsosecee 14
Vachon v. New Hampshire, 414 U.S. 478 (1974) .......... 8
Washington v. United States, 357 U.S. 348 (1957) ........ 8
Constitutional Provision
U.S. Const., Amend. 14, § 1
—
Supreme Court of the United States
October Term, 1978
No.
RAYMOND WALKER,
Petitioner,
Vv.
STATE OF OHIO,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
To the Supreme Court of Ohio
The petitioner, Raymond Walker, respectfully prays
that a writ of certiorari issue to review the judgment
and opinion of the Supreme Court of Ohio entered in
this proceeding on July 26, 1978.
OPINION BELOW
The opinion of the Supreme Court of Ohio captioned,
State v. Walker, 55 Ohio St. 2d 208 (1978), appears in the
appendix hereto.
JURISDICTION
The judgment of the Supreme Court of Ohio was
entered on July 26, 1978. A timely motion for rehearing
was denied on December 7, 1978, and this petition for
2
certiorari was filed within 90 days of that date. This
Court’s jurisdiction is invoked under 28 U.S.C. §1257(3)
(1970).
QUESTIONS PRESENTED FOR REVIEW
1. Whether the conviction in the instant case was
so devoid of evidentiary support as to render it unconsti-
tutional under the Due Process Clause of the Fourteenth
Amendment.
2. Whether the conviction in the instant case was
unconstitutional under the Due Process Clause of the Four-
teenth Amendment where the atmosphere in and around
the courtroom was so hostile as to interfere with the trial
process.
CONSTITUTIONAL PROVISION INVOLVED
This case involves Section 1, Amendment 14, United
States Constitution, which provides in pertinent part:
“
.
_ nor shall any state deprive any person of life,
liberty, or property without due process of law...”
STATEMENT OF THE CASE
This proceeding involves the first degree murder con-
viction of Raymond Walker. On March 12, 1976, Raymond
Walker was indicted by the Stark County Grand J ury
for first degree murder, being charged with killing, while
perpetrating a robbery on July 22, 1972, Guy Mack, a
Canton detective. That he was arrested, let alone indicted
and convicted, is remarkable because on that day Raymond
a saree
. —
3
Walker was residing in the Cuyahoga County Jail, having
been arraigned on April 14, 1972 on a charge of attempted
burglary and having been unable to raise $5,000 in bail
(T-306). He was not released until August 1, 1972
(T-307). Canton, Ohio, is located approximately 50 miles
from the Cuyahoga County Jail.
The first trial of the petitioner resulted in a hung
jury. At the second trial, the prosecution stipulated that
according to the jail and court records of Cuyahoga County,
the petitioner was confined in the Cuyahoga County Jail on
July 22, 1972. Three fellow inmates of the Cuyahoga
County Jail during the pertinent period of time testified that
Mr. Walker was never absent from his cellblock, except for
occasional court appearances (T-340, 351, 352, 428, 569,
570). Individuals employed by the Cuyahoga County Sher-
iff’s Department testified that a body count was taken
each night and unless this count corresponded with records
kept at the jail’s booking desk, a cellblock search would
be conducted. On July 21, 1972, the date of the aborted
attempt at robbery (T-176, 235), there was activity
in Walker’s commissary account in the jail indicating he
must have been there (T-85, 86, 407, 408, 952).
The difficulty in escaping unnoticed from the jail was
demonstrated by testimony concerning the physical char-
acteristics of the jail. The booking desk in the basement
of the jail is its main center (T-696). Everyone going
in or out, whether it be prisoner, visitor, deputy sheriff,
or lawyer, must pass by the booking desk (T-696, 697,
762). After one has passed the booking desk, one must
proceed through two gates, each of which is locked (T-696,
697), and a locked door (T-698). Two elevators, each
of them operated manually, carry persons to the upper
floors of the jail (T-697-699). If Raymond Walker had
been on the streets on July 21 and 22, 1972, at least
4
50 persons would have been aware of it. There were
54 prisoners in the block with him (T-343). . During each
of the three shifis, there was at least one deputy on the
floor and probably more, depending on the manpower
(T-65). He would have had to have gone to the tenth
floor to get his civilizn clothes (T-708, 847). Checking
them out would have brought him into contact with at
least one other person. He would then have had to get
on the elevator, which was manually operated. The at-
tendant would have known he was leaving. At the base-
ment level, someone would have to unlock the door and
the two gates. Thus, at least, one more person would
have been aware that he was leaving. Then he must
proceed past the booking desk, and at least one more
witness, before reaching the street.
No evidence was presented as to how the petitioner
could have possibly left the jail and re-entered unnoticed
after committing the alleged crime.
The way the alleged accomplices, Warren Davidson
and Fred Ogeltree, explain the crime, Raymond Walker
was the mastermind behind the robbery of the Canton
A & P store (T-174, 233-234). He enlisted their aid in
an after-hours “joint” operated in Cleveland in the early
morning hours on Friday, July 21, 1972 (T-168, 231). That
morning the three of them and a white man drove to
Canton, but the white man became frightened and the
crime was aborted (T-176, 235).
The next day, Saturday, July 22, the three and a
man named Bennett returned to the Canton A & P store.
Davidson waited outside while the other three went into
the store (T-179). Guns drawn, Ogeltree stood at the
door, the gunman at the cash registers (there were four
lanes in the supermarket) (T-113), and Bennett went into
)
the manager’s booth (T-237). Guy Mack, an off-duty Can-
ton policeman, was at aisle No. 3 with his wife (T-133-
134). He lunged at the gunman, who shot him (T-237-
238). The felons rushed out of the supermarket, got into
the cars and returned to Cleveland (T-180-183, 239).
Davidson and; Ogeltree were apprehended soon there-
after, each pled innocent, each testified at his trial that
he was not involved in the robbery, and each was con-
victed (T-172, 173, 229).
In 1976 Ogeltree and Davidson approached Fred
Meyers in the Lucasville Penitentiary (T-450-451).
Meyers was the “jailhouse lawyer” (T-449). They told
Meyers that they could not understand how they could
be forced to serve a life sentence, having only stolen a
car and the job having been pulled by “three junkies
from Detroit” (T-453-454). He explained the felony-mur-
der rule to them. They were tired of being in jail and
knew commutation of their sentences was possible only
if they named the triggerman (T-455-456). He told them
that designating an anonymous junkie would not satisfy
the authorities (‘T-456). Ogeltree replied that he did not
know the name of the triggerman but he would have
a name in a week (T-455-456); that a friend of his was
going to get for him the name of “the nigger that’s laying
my old lady” (T-458-459).
The prosecution attempted to corroborate the accom-
plices’ testimony by producing a parade of witnesses who
were at the scene of the crime. Audrey Melton, a customer
in the express lane in the supermarket, could make no
identification (T-113). Roy O’Grady, the manager in the
booth, could make no identification (T-131). Byron Low-
ther, the clerk at check-out counter No. 3, where the
murder occurred, could make no identification (T-141).
6
Rose Caly, the clerk at the express counter, identified
Ogeltree, but could make no identification of Walker
(T-149).
Earl Alexander, sitting in the parking lot waiting for
a neighbor at the time of the robbery, heard gunshots
and saw three men running out of the supermarket (‘T-109).
He stated he could identify the men and that none of
them were in the courtroom (T-110). Thus, one of the
prosecution’s own witnesses directly contradicted the testi-
mony of Ogeltree and Davidson.
Rene Clark was the ovily witness to positively identify
Walker as the triggerman (T-271). At the time of the
robbery she was sixteen years old (T-272). Three years
later she went to a line-up and designated subject No.
1 with a question mark (T-276). Thereafter Detective
Newkirk of the Canton police, on seeing what she had
done, came up to her and said he “ought to kick your
butt all the way to Detroit.” (T-973). It is not surprising
that at the trial she made a positive identification of the
petitioner, who was No. 5 at the line-up.
Furthermore, Miss Clark described the triggerman as
darker than Stanley Tolliver (T-276) and as dark as one
Mr. Dansby (T-278). Mr. Tolliver has described Mr.
Dansby to his co-counsel as being as dark as the ace
of spades. Miss Clark attempted to explain the discrepancy
between Walker’s color and that of Mr. Dansby by claiming
that at the time of the murder the sun had made Walker
as dark as Mr. Dansby (T-278-279). The petitioner sitting
in Cuyahoga County Jail, could have had little opportunity
to sun himself in the summer of 1972. Miss Clark was
a strongly partisan, suggestive witness and it is obvious
from her testimony that she had picked the wrong man
but was determined to stick with the choice,
ee
7
Mrs. Mack, the wife of the victim, who was next
to her husband in the check-out line during the shooting,
could not bring herself to say that the petitioner committed
the crime, stating merely that he looked like the man.
Mrs. Mack, like Rene Clark, had selected subject No. 1
as the triggerman in the 1975 line-up rather than subject
No. 5, Walker.
In spite of the fact that the prosecution presented
no evidence as to how the petitioner managed to escape
from the Cuyahoga County Jail and gain re-admittance,
the petitioner was convicted of first degree murder.
The Court of Appeals for the Fifth Appellate District
of the State of Ohio affirmed the conviction of the peti-
tioner. The Ohio Supreme Court granted Walker’s motion
for leave to appeal and subsequently affirmed the convic-
tion in a five-to-two decision.
The first question presented for review was initially
raised at the trial level of the proceeding. Petitioner
moved, pursuant to Rule 29 of the Ohio Rules of Criminal
Procedure, for a judgment of acquittal at the close of
the state’s case, and upon conclusion of the defense. The
court denied both motions. The lack of evidentiary support
for the conviction was again raised in the Court of Appeals
in petitioner’s first and second assignments of error. The
first question presented was set forth in the Supreme
Court of Ohio in petitioner’s first and second propositions
of law. The majority of the Supreme Court and Court
of Appeals found sufficient evidentiary support to uphold
the conviction.
Objections to the hostility of the trial court which
denied petitioner due process of law were made at various
points in the trial proceeding. The petitioner’s entire brief
in the Court of Appeals centered on the unfairness of
8
the proceedings. Specific points where the due process
violations were raised are set forth in detail in the text
of the second question presented for review. The denial
of due process was again raised in the petitioner’s sixth
proposition of law presented to the Supreme Court of
Ohio. The court found that the atmosphere was not so
hostile as to deny the petitioner due process of law.
REASONS FOR GRANTING THE WRIT
1, THE DECISION BELOW IS IN CONFLICT WITH
DECISIONS OF THIS COURT AND WITH FUND-
AMENTAL JUSTICE IN UPHOLDING A CON-
VICTION WHICH IS DEVOID OF EVIDEN-
TIARY SUPPORT.
Petitioner recognizes that it is not the function of this
Court to review evidence and discuss specific facts. How-
ever, this Court will consider the question of whether the
charges against a petitioner were so totally devoid of evi-
dentiary support as to render the conviction unconstitu-
tional under the Due Process Clause of the Fourteenth
Amendment. Thompson v. Louisville, 362 U.S. 199 (1960).
“It is beyond question, of course, that a conviction based
on a record lacking any relevant evidence as to a crucial
element of the offense charged .. . violate[s] due
process.” Harris v. United States, 404 U.S. 1232, 1233
(1971) (Douglas, J., in chambers)
See also, Vachon v. New Hampshire, 414 U.S. 478 (1974).
In addition, this Court has reviewed the sufficiency of the
evidence upon which a conviction is based. Washington v.
United States, 357 U.S. 348 (1957).
In the instant case, the evidence presented at trial was
simply not of a quality sufficient to support a conviction in
9
conformity with due process of law. The principal wit-
nesses against Walker were the alleged accomplices, Ogel-
tree and Davidson. Ohio has recognized that such testi-
mony “. . . is inherently suspect and untrustworthy and we
approach it with utmost caution.” State v. Klein, 50 Ohio
St. 2d 11 at page 14 (1977).
The testimony of Ogeltree and Davidson is more than
ordinarily suspect. Both lied in maintaining their innocence
during their trials in which they were convicted (T-173,
229). Tired of jail, the two designated Walker as the mur-
derer three years after the incident with the hope of leni-
ency (T-173, 188, 224, 241, 242). Ogeltree bore malice to-
ward Walker because he became involved with Dolores
Ogeltree at the time her marriage to Ogeltree had floun-
dered (T-623). Furthermore, Ogeltree had specifically ad-
mitted to three persons that Walker was not involved in the
robbery and murder. Not only did he admit to Fred
Meyers, as related on page 5 above, but during a visit at
the Stark County Jail with Dolores Ogeltree and Mable
Potts, he told them Walker was innocent (T-601, 603. 609,
622).
Ogeltree and Davidson’s testimony was not merely
inherently suspect. Corroboration was so tainted as to
make it worthless. Of the ten eyewitnesses, nine could not
identify the petitioner as a participant in the crime (T-97,
105, 106, 115, 131, 136, 141). The seventh, Rene Clark, had
selected a different subject at a prior line-up and had de-
scribed the triggerman as being significantly darker than
Mr. Walker. Her in-court identification occurred after a
Canton detective had threatened “to kick [her] butt all
the way to Detroit” (T-973). Under these circumstances,
her in-court identification cannot be properly given any
weight.
10
Even when reviewed in a vacuum, the evidence pre-
sented by the state was insufficient to support a convictiva
in conformity with due process of law. When the state’s
evidence is examined in light of Walker’s alibi that he was
in jail on the date of the murder, any possible credibility
which could be given the state’s evidence disappears. Ac-
cording to the Cuyahoga County Court and Sheriff Depart-
ment records and the testimony of the sheriff's deputies
and fellow inmates, Raymond Walker was incarcerated on
the date of the murder. The physical characteristics of the
jail made an unobserved escape and readmittance im-
possible. There is a certain horror in the belief that
human nature is so base that not one of the over fifty
people who would have been aware of Walker’s absence
including governmental officials, would not, after having
learned of the murder, come forward to testify against him.
Such a cover-up is unprecedented.
The evidence produced against the petitioner was so
discreditable and untrustworthy as to constitute “no evi-
dence” for the purpose of applying the Thompson standard.
Assuming, arguendo, that this conviction is not sus-
ceptible to challenge under the Thompson standard of re-
view, petiticner submits that this case presents an excellent
opportunity for the Court to reconsider the standard of
Thompson in light of this Court’s more recent decision
in In re Winship, 397 U.S. 358 (1970). Winship held
that the Due Process Clause requires proof beyond a rea-
sonable doubt of every element of a crime and that a
jury must be instructed accordingly.
“Properly instructed juries, however, occasionally con-
vict even when it can be said that no rational trier
of fact could find guilt beyond a reasonable doubt—
even when it is clear that the defendant was entitled
11
to a directed verdict of acquittal as a matter of law.
In a federal trial, such improper application of law
(as defined by Winship) to fact requires reversal of
the conviction on the ground of insufficient evidence.
“The power of a federal court to review the applica-
tion of federal law to the facts as found also operates,
however, in criminal cases originating in state courts.”
Freeman v. Zahradnick, 429 U.S. 1111, 1112 (1977)
(Steward, J., dissenting)
The dissenting opinions of Justice Marshall, with whom
Justice Brennan joined, and Justice Marshall, in Freeman,
suggest that the question of whether there was sufficient
evidence to support a finding by a rational trier of fact
of guilty may be of constitutional dimension. Justice Stew-
ard stated at page 1113 that:
“Such a view would not require federal courts to sec-
ond-guess state-court findings of fact or a State’s def-
inition of the elements of a crime. Rather, the federal
courts would no more than perform a familiar and ap-
propriate role—reviewing the application of a substan-
tive federal standard (the requirement of proof beyond
a reasonable doubt) to the historical facts.”
The application of the Thompson standard, in which
the court determines whether the conviction rests upon
any evidence rather than upon sufficient evidence, is diffi-
cult to apply:
“BKyidence that a defendant is a narcotics addict makes
it more likely that he has stolen property (to finance
his habit) than it would be without such evidence.
Can it therefore be said that there is ‘some evidence’
that the addict is a thief? If not, can any definable
content be discerned in the ‘no evidence’ rule? In-
deed, in the Thompson case itself, could it fairly have
12
been said that the mere fact that the defendant was
found in a cafe, rather than home in bed, was some
relevant evidence that he was guilty of loitering and
disorderly conduct?
“My tentative view is that where the evidence falls
far short of supplying adequate proof of guilt for a
rational trier, to require judges to determine how spec-
ulative is too speculative to satisfy the no-evidence
rule is to require the impossible. The ordinary stan-
dard of ‘sufficiency of the evidence,’ by contrast, is
one familiar to state and federal judges and lawyers.
Although like most legal standards it is not reducible
to any mechanical formula, it does have a stable con-
tent permitting predictable adjudication.” Freeman
at 1113 (Steward, J., dissenting)
Petitioner submits that certiorari should be granted
to determine if the court below erred in affirming a convic-
tion in violation of the Thompson standard. In addition,
this cave presents an excellent opportunity to review the
validity of the Thompson case in light of the more recent
decisions of the Court.
2. THE DECISION BELOW CONFLICTS WITH DE-
CISIONS OF THIS COURT WHICH HAVE HELD
THAT AN ACCUSED IS DENIED DUE PROCESS
OF LAW WHERE THE ATMOSPHERE IN AND
AROUND THE COURTROOM IS SO HOSTILE
AS TO INTERFERE WITH THE TRIAL PRO-
CESS.
The petitioner was convicted without due process of
law as guaranteed by the Fourteenth Amendment to the
United States Constitution. The record in the instant case
demonstrates that Walker was denied a fair and unbiased
13
trial because the overt hostility toward law enforcement
officials in Cuyahoga County made an impartial verdict
impossible, because the judge was not a disinterested medi-
ator, and because the large amount of irrelevant and prej-
udicial evidence introduced at this trial caused the verdict
to be based on speculation and conjecture rather than
on competent evidence.
A fair trial in a fair tribunal is a basic requirement
of due process. In re Murchison, 349 U.S. 133 (1955).
“The very purpose of a Court system is to adjudicate
controversies, both criminal and civil, in the calmness
and solemnity of the courtroom according to legal
procedures.” Craig v. Harvey, 331 U.S. 367, 377 (1947)
In Moore v. Dempsey, 261 U.S. 86 (1923), it was held
that the atmosphere in and around the courtroom might
be so hostile as to interfere with the trial process, even
though an examination of the record disclosed that all
the forms of trial conformed to the requirements of law:
the defendant had counsel, the jury members stated they
were impartial, the jury was correctly charged, and the
evidence was legally sufficient to convict. In Frank v.
Mangum, 237 U.S. 309, at 346 (1915), (dissenting opinion),
Justice Holmes stated that even though “every form [be]
preserved,” the forms may amount to no “more than an
empty shell” when considered in the context or setting
in which they were actually applied.
In three decisions, Estes v. Texas, 381 U.S. 735 (1965);
Sheppard v. Maxwell, 384 U.S. 333 (1966) and Irwin v.
Dowd, 366 U.S. 717 (1960), this Court has held that sensa-
tional press coverage could deprive a defendant of due
process of law because it deprived him of the judicial
serenity and calm to which he was entitled.
14
In Turney v. Ohio, 273 U.S. 510 (1927) this Court
stated that:
“Every possible procedure which would offer a possible
temptation to the average man .. . to forget the
burden of proof required to convict the defendant,
or which might lead him not to hold the balance
nice, clear and true between the state and the accused
denies the latter due process of law.” at 532 (Empha-
sis added)
Similarly, in Murphy v. Florida, 421 U.S. 794 (1974) this
Court held that the constitutional standard of fairness re-
quires that a defendant have a panel of impartial, indif-
ferent jurors.
The petitioner was denied a calm and solemn adjudi-
cation of his guilt or innocence before an impartial tri-
_ bunal. The judicial system was determined to obtain the
conviction of a “triggerman” of this crime at any cost.
Stretch Meyers, an inmate at Lucasville, testified in Octo-
ber, 1973, that Judge DeHoff asked him to keep his ears
open in Lucasville because they were interested in settling
the Guy Mack murder (T-470). Thus, even the trial judge
demonstrated an interest in solving this crime which ex-
ceeded the bounds of judicial propriety and indeed cast
him in the role of a second prosecutor.
An example of the patent complicity between the trial
court and the prosecution is presented in the situation
of John Appling. Appling, a giant of a man weighing
260 pounds (T-482), was called but refused to be sworn
or to testify (T-51). After a fruitless voir dire the judge
took him privately into chambers, ostensibly to persuade
him to testify (T-61). He subtly threatened him with
a letter to the parole board (T-61). Although he knew
that Appling had nothing to offer in the trial of this
15
matter, the judge persuaded him to take the stand without
being sworn and, before the jury, elicited from him his
name, his address in Cleveland, the fact that he was in
prison and that he refused to testify (T-61, 62). Through-
out the trial the court permitted the prosecutor, usually
over objection, to inquire of various witnesses whether
Appling had been in the Cuyahoga County Jail at the
time Walker was confined (T-78, 343-347, 351, 570-571,
667, 905-907). They stated that he was not only in jail
with Walker but on the same range and that he was
the range boss. Obviously the purpose of this interrogation
was to suggest to the jury that Appling had some informa-
tion concerning Walker’s ability to pass through the gates
of the jail at will. Presenting this incomplete testimony
and then permitting the jury to speculate as to what Mr.
Appling would have said if he had not refused to testify
clearly violated the right of the appellant to be tried on
the basis of competent evidence and not conjecture.
The court even compounded matters by permitting
the prosecutor in his cross examination of Fred Meyers
to insinuate that Appling had been threatened in order
to cause him to change his testimony and to suggest that
Meyers had persuaded Appling to refuse to testify with
the promise of a nice job at Lucasville, a promise that
was outside Meyers’ ability to perform (T-481-483).
The prosecution, with the concurrence of the trial
court, launched into a full-scale attack against the Cuya-
hoga County Jail, bringing in matters that had absolutely
nothing to do with Raymond Walker, his guilt or innocence,
and were designed to impress the jury with the inadequa-
cies of the Cuyahoga County Jail without contributing a
single probative fact concerning this case. Over objection
the prosecutor was permitted to inquire into the crowded
condition of the jail and its investigation by the community
16
groups (T-661-667), gambling in the jail (T-679-680), the
use of drugs in the jail (T-733-736), the shortage of funds
in the commissary (T-680), the burning of commissary
books and records (T-737-739) and a hunger strike of
the inmates (T-741). The information was garnered from
newspaper accounts and copies of articles were proudly
waved by the prosecutor before the jury (T-662-665, 734-
736, 737, 739, 872, 873). Significantly, there were no news-
paper articles concerning persons walking in and out of
jail at will.
Over objection the prosecuiion was permitted to bring
out that Major Paine, who was not even employed by
the sheriff at the time Walker was confined (T-676, 717),
was convicted of theft of property in 1976 (T-676-678,
749, 750).
In addition, the prosecution was permitted to go into
great detail concerning an investigation in 1976 by the
state auditor’s office of a shortage of funds in the commis-
sary operated by Sheriff Kreiger (T-896-902, 930-942). The
state examiner was even permitted to testify that obstacles
were imposed in his investigation by the sheriff’s office
and that he was required to go to court to get the records
(T-932). He did admit on cross examination that the
individual ledgers concerning the prisoners were adequate,
that Walker’s ledger showed a transaction on July 21,
1972 (T-952); and that his investigation concerned the
back-up receipts of purchases for the commissary by the
sheriff (T-495).
Neither the fact that there was an audit of the com-
missary funds in 1976 nor the matter investigated and
revealed by the auditor was relevant concerning the issue
of whether or not Raymond Walker was in jail on J uly
22, 1972. The auditor’s investigation did not disprove the
17
entry of July 21, 1972 and served only to cast aspersions
upon the Cuyahoga County Sheriff.
Detective Newkirk of the Canton police got his lance
in. Over objection he explained that the delay in bringing
Walker to trial was caused by the fact that Cuyahoga
County would not extradite him from Illinois (T-962).
Presumably, the evidence complained of under this
proposition of law was directed at refuting the alibi. We
submit there is absolutely no logical connection, but the
court in sanctioning the evidence led the jury to believe
that it was of probative force in disproving Walker’s alibi.
Indeed, he as much as told them this as is indicated by
the following colloquy concerning Major Paine at page
676 of the transcript:
“Q. And then Major Paine came in around No-
vember you believe?
A. He came in with Sheriff Kreiger in ’69 and
he was with us for a few years and then he left.
And I know that he came back just before election.
Q. Did he come in as a major?
A. He was the warden when he came in.
Q. Hestarted at the top in other words, right?
Mr. Tolliver: Object to relevancy.
The Court: Overruled.
A. He was a major when he left and when he
came back. If I’m correct—I can’t remember.
Q. He’s no longer with the Sheriff's Department
now is he?
A. No, sir.
Q. As a matter of fact he’s not with the Sheriff's
Department because he was indicted and found guilty
of—
18
Mr. Tolliver: Object, judge.
Q. Theft of property, isn’t that true?
Mr. Tolliver: Objection.
The Court: Overruled.
He was indicted right.
And he was found guilty?
He was found guilty.
Of theft of property from the jail?
Property of the jail?
Isn’t that true?
I think it was something about two guns that
were missing.
Q. What was it evidence?
Mr. Tolliver: Continuing objection, judge, rele-
vancy.
The Court: No, it’s very relevant in this case.
Overruled.”
The court itself participated in the attack on Cuyahoga
County. James Miller, a deputy clerk of courts of the
Cuyahoga County Common Pleas Court, testified concern-
ing the court records pertaining to Walker (T-301-312).
After an exhaustive cross examination disparaging the pro-
cedures of the Cuyahoga County Court of Common Pleas
(T-312-327), the following appears at page 327:
rPOoPrO > >
“Q. Can you tell me how many other mistakes
you have made?
Mr. Tolliver: Objection to this, judge.
The Court: Yes, sustained.
Q. Nothing further.
A. I’m nota handwriting expert.
The Court: That answer will be stricken from
the record. This witness will be admonished from
19
making a statement without a question before him,
sir. You are not in Cuyahoga County today, and the
jury will disregard it.
Mr. Tolliver: Oh, judge.
The Court: I withdraw that and the jury will
disregard my remarks, too.”
Another example of hostility towards Cuyahoga
County is presented in the cross examination of Captain
Frank Uranker of the Cuyahoga County Sheriff’s Depart-
ment. Tom Booth is an employee of the Cuyahoga County
Sheriff who for obvious reasons was interested in the
Walker case and on his days off attended the trial. The
prosecutor inquired, with the jury present, of Captain
Uranker as follows at pg. 681:
“Q. Do you know a man by the name of Tom
Booth?
A. Tom Booth?
Q. Yes.
A. Yes.
Q. And he’s a detective with the Cuyahoga County
Sheriff’s Department, is that true?
A. Yes, sir.
Q. And were you down here Friday?
A. Yes, sir.
Q. And during the conduct of this trial where
was Tom Booth?
He was in this room. om
Had he been subpoenaed as a witness?
No, sir.
He was down here on his own time?
That’s right. That’s what he told me.
> OPO pP
20
Q. And did he also tell you that he came down
because he had never seen a trial before?
Mr. Tolliver: Objection to all this judge.
The Court: Overruled.
A. Hedidn’t say that to me.
Mr. Tolliver: Note my exception.
Q. Do you know why he came?
Mr. Tolliver: Objection.
The Court: Overruled.
A. No, sir.
Q. And were you aware that he was taking notes
in the courtroom?
Mr. Tolliver: Objection, judge.
The Court: Overruled.
Mr. Tolliver: That’s a fact not in evidence.
A. No, sir. After I—he came out and he said
he was called into the chamber by the judge and
he told me that the judge asked him why he was
here and what was he doing in court. That’s all
I know.
Q. But you also know that during every recess
prior to that time he came out of the courtroom and
he had conversations with all of you didn’t he?
Mr. Tolliver: Judge, note my continuing objec-
tion.
The Court: Overruled.
A. We talked to him but he didn’t say nothing
about the trial.
Q. What did he talk about?
Mr. Tolliver: Objection.
The Court: Overruled.
Mr. Tolliver: Compounded hearsay.
21
A. Oh, how long we going to have to wait here.
I mean we didn’t come out and say nothing about the
trial.
Q. He didn’t come out and tell you about the
questions being asked about the commissary or the
hunger strike?
A. No,sir. No, sir.
Q. Why did he have to wait?
A. Idon’t know.
Mr. Tolliver: Objection, judge:
The Court: Overruled.”
Certainly, the prosecutor had no business asking these
questions before the jury. If there was a violation of
the court’s order requiring a separation of witnesses, it
should have been presented to the court out of the hearing
of the jury. But after the court had called Detective
Booth into chambers, to permit the prosecutor to insinuate
that he was prompting the defense witnesses demonstrates
that the cooperation between the court and the prosecutor
made a fair trial impossible. See page 784 of the Transcript
where a repetition of this line of inquiry was again
sanctioned by the court.
The trial court also made some unusual rulings per-
taining to opinion testimony. The term “killer snitch”
refers to a person incarcerated in the penitentiary who
testifies against his fellows. The court, over objection,
permitted Warren Davidson and Fred Ogeltree to testify
that as a result of their testimony they were in danger
of their lives because of the social circumstances in the
jail (T-171-172, 243-244), and permitted Royce Crim to
verify this opinion (T-438, 439). Davidson and Ogeltree’s
testimony is self-serving and of doubtful value. Having
permitted this kind of opinion testimony, however, it was
22
entirely inconsistent for the trial court to refuse to permit
officers of the Cuyahoga County Sheriff’s Department to
render an opinion based upon their knowledge of the proce-
dures, conditions, circumstances and records of the jail,
as to whether Walker was in jail on July 22, 1972. The
court repeatedly excluded the opinion testimony of the
officers (T-87, 642-645, 790-791, 812-813). He condescended
to permit Sergeant Baker to testify that the jail records
indicated Walker was in jail, but emphasized to the jury
that the evidence was confined to the records alone (T-877).
The court’s partiality is also reflected by the fact
that he was unduly supportive of the prosecution’s prin-
cipal witnesses, Mable Mack and Rene Clark. During the
direct examination of Mrs. Mack, the following occurred
at page 136 of the Transcript:
“Q. Is there anyone in the courtroom who was
in the store that day?
A. Well, the accused looks very much like the
man.
Q. Are you—
A. The man in a brown suit, brown tie, and
beige-looking shirt.
Q. Let the record show that the witness has iden-
tified the defendant.
Mr. Tolliver: Objection. She has not.
The Court: Well, the record will show that the
defendant looks very similar like the man that she
saw shoot her husband.”
And at page 275 of the Transcript Mr. Tolliver was cross
examining Miss Clark concerning the extremely important
fact that she had picked the wrong man out of the line-
up:
23
“Q. And he told you now look at these five men.
They were all black man, weren’t they?
A. Yes.
Q. Hesaid look them over good didn’t he?
A. Yes.
Q. And if you see anybody in there you recognize
pick him out isn’t that right?
A. Yes.
Q. And you selected number one didn’t you?
A. What he said was—
Q. Yes or no.
A. Yes.
Mr. Ake: I object.
The Court: You may explain your answer, Miss
Clark.
A. It was the young man there he told me to
go in and circle and if you wasn’t sure or to put
a question mark by it, the number that you circled.
And then I went back and asked him.
Mr. Tolliver: Now, just a minute.
Mr. Ake: I don’t think she’s finished her answer.
The Court: You may continue to explain your
answer, Miss Clark.
A. And then he—I went back to ask him to make
sure what he said and I did. You know, I circled
and put a question mark by it, but I knew.”
The court’s intervention in this line of questioning was
unnecessary. It implied to the jury that Mr. Tolliver
was being unfair, which he was not, and suggested that
the trial court placed credence in Miss Clark’s explanation.
An accused has a right to be “fairly tried in a tri-
bunal free of prejudice, passion, excitement, and tyrannical
24
power.” Chambers v. Flondie, 309 U.S. 227, 236-237 (1940).
In the instant case, this right was denied, not by the
actions of an outside press as was the situation in the
Sheppard, Estes and Irwin cases, but by conduct of the
judge and prosecutors themselves. Clearly this is an even
more serious deprivation of due process.
The record demonstrates that the atmosphere in and
around the courtroom was so hostile as to interfere with
the trial process and to cause the verdict to be based
on bias and speculation rather than on competent evidence.
The petitioner is entitled to a new trial before a fair
and impartial tribunal. Petitioner submits that certiorari
should be granted to determine if the court below erred
in affirming a conviction in violation of the due process
standards developed by this Court.
CONCLUSION
For these reasons, a writ of certiorari should issue
to review the judgment and opinion of the Ohio Supreme
Court.
Respectfully submitted,
ERNEST P. MANSOUR
ELI MANos
Davin B. CATHCART
Mansour, GAVIN, GERLACK & MANos
Co., L.P.A.
2150 Illuminating Building
Cleveland, Ohio 44113
STANLEY E. TOLLIVER
1835 Forest Hills Boulevard ,
East Cleveland, Ohio 44112 ~'
Counsel for Petitioner
25
APPENDIX
ORDER OF THE OHIO SUPREME COURT
DENYING PETITION FOR REHEARING
(Dated December 7, 1978)
No. 77-984
THE SUPREME COURT OF THE STATE OF OHIO
Tue Strate or Onto, Crty or COLUMBUS
STATE OF OHIO,
Appellee,
Vs.
RAYMOND WALKER,
Appellant.
REHEARING
It is ordered by the court that rehearing in this case is
denied.
26
OPINION OF THE OHIO SUPREME COURT
(Decided July 26, 1978)
No. 77-984
THE SUPREME COURT OF THE STATE OF OHIO
Tue STaTe or On10, City or COLUMBUS
STATE OF OHIO,
Appellee,
vs.
RAYMOND WALKER,
Appellant.
Criminal law—First-degree murder—Defense of alibi—
Evidence attacking credibility thereof—Not prejudicial,
when.
Appeal from the Court of Appeals for Stark County.
Raymond Walker, A. K. A. Dewitt Ingram (appellant),
was indicted on March 12, 1976, by the Stark County grand
jury for the crime of first degree murder, R. C. 2901.01.
The indictment, in relevant part, reads:
“That Raymond Walker * * * on or about the 22nd day
of July in the year of our Lord one thousand nine hundred
and seventy two * * * did purposely, in perpetrating or
attempting to perpetrate robbery, kill Guy Mack * * *.”
Guy Mack (decedent), an off-duty city of Canton
police officer, was shopping with his wife for their weekly
groceries in an A & P store located at 1800 East Tuscarawas,
Canton, Ohio, on the morning of July 22, 1972. While
their purchase was being tabulated, three men entered the
—"
27
store. One remained by the door, another entered the
manager’s cage and the third proceeded to the checkout
counters. The decedent then attempted to grab this third
man, as he was collecting the money from the checkout
counter. This third man fired three shots, two of which
struck the decedent fatally wounding him.
Subsequently, Warren Davidson and Fred Ogeltree
were arrested in connection with their participation in this
crime. Both were convicted, in 1973, of first degree murder
and sentenced to life imprisonment. While serving their
sentences at Lucasville, Davidson and Ogeltree implicated
the appellant as the person actually responsible for fatally
shooting the decedent.
The second trial of the appellant for the murder of
the decedent was commenced on August 23, 1976 (the first
trial resulted in a hung jury). Both Davidson and Ogeltree
testified at trial as to appellant’s participation in the rob-
bery. Ogeltree stated that he saw the appellant shoot the
decedent. It was admitted during the trial that the Stark
County prosecutor had agreed to send a recommendation to
the Governor of Ohio, noting the cooperation of Davidson
and Ogeltree in return for their testimony in the instant
cause.
The state of Ohio (appellee) also introduced an eye-
witness, Rene Clark, who at the trial positively identified
the appellant as the man who shot the decedent. Other
evidence was adduced by appellee to support its case. This
evidence included, inter alia: (1) The decedent’s wife,
although unable to positively identify the appellant as the
murderer, stated that he definitely looks very much like
the man, and (2) Mrs. Willie Mae Hart testified that shortly
after the crime occurred she saw a brown compact auto-
mobile being driven by a man with a bad complexion
similar to appellant’s. This testimony of Mrs. Hart to some
28
extent supported Ogeltree’s and Davidson’s testimony con-
cerning the details of their and appellant’s departure from
the scene of the crime.’
The appellant introduced the defense of alibi. Appel-
lant submitted in evidence the records of the Cuyahoga
County jail, which show that appellant was therein in-
carcerated from April 14, 1972, until his release on August
1, 1972. Appellant further introduced other evidence in
an attempt to discredit the testimony of Davidson and
Ogeltree and that of Rene Clark.
In order to discredit appellant’s alibi, appellee adduced
various testimony, attempting to disprove the credibility
of the records of the Cuyahoga County jail, including,
but not limited to, the testimony of three people to the
effect that they had seen appellant not in police custody
but free in Cleveland in June of 1972.
On September 3, 1976, the jury returned a verdict
of guilty. The trial judge thereupon sentenced the appel-
lant to a term of life imprisonment.
Appellant then appealed to the Court of Appeals,
which affirmed the judgment of the trial court.
1. Ogeltree testified that, after the robbery and the shooting,
he departed in the stolen Plymouth (white automobile) along with
Davidson and Bennett and that Robinson drove away in the brown
automobile. He further stated that they returned to where they
had left Bennett’s Oldsmobile and then transferred from the Ply-
mouth to the Oldsmobile.
Davidson testified that he drove the stolen Plymouth as they
left the A & P supermarket with Bennett and Ogeltree in it and
that appellant was ahead in the brown Maverick automobile.
Mrs, Hart stated, at trial, that she noticed a brown and a
white car traverse her street twice on the morning of the inci-
dent. Additionally, she testified that on their return trip, about
20 minutes after she first saw them travel Monroe in the op-
posite direction, the white car was occupied by two males and
it followed a brown automobile driven by one male with a rough
complexion, similar to appellant’s.
29
The cause is now before this court pursuant to the
allowance of a motion for leave to appeal.
Mr. James R. Unger, prosecuting attorney, and Mr.
Dale T. Evans, for appellee.
Messrs. Merkel, Campbell, Dill & Zetzer, Mr. Ernest
P. Mansour, Mr. Eli Manos, Mr. David B. Cathcart and
Mr. Stanley E. Tolliver, for appellant.
Per Curiam.
I,
Appellant, in his first proposition of law, essentially
asserts that the evidence presented at trial did not attain
the requisite degree of proof needed to support his con-
viction. Our consideration of this proposition is limited
to an examination of the record at the trial to determine
whether the evidence presented, “which, if believed, would
convince the average mind of the defendant’s guilt beyond
a reasonable doubt.” Atkins v. State (1926), 115 Ohio
St. 542, 546. This review is thus confined to a determina-
tion of whether there was substantial evidence. State
v. Sheppard (1956), 165 Ohio St. 293, paragraph five of
the syllabus; State v. Stewart (1964), 176 Ohio St. 156,
160.
A review of the record reveals that appellee produced
the testimony of two accomplices, Davidson and Ogeltree,
as to appellant’s participation in the crime. Ogeltree testi-
fied that he saw appellant shoot the decedent. The record
also contains the in-trial identification of appellant as the
decedent’s murderer by Rene Clark, an unininterested eye-
witness. Her in-court identification of appellant withstood
a vigorous cross-examination by appellant’s counsel. Fur-
thermore, the decedent’s wife, Mrs. Mack, testified that
the appellant looked “very much like the man” who shot
30
her husband. The testimony of Mrs. Hart, introduced
by the appellee, corroborated the testimony of Davidson
and Ogeltree with respect to their and appellant’s fleeing
the scene of the crime. Mrs. Hart, who lives in the prox-
imity of the A & P food store, testified that on the morning
of July 22, 1972, she observed two cars traverse the street
where she lives at a very high rate of speed. Mrs. Hart
stated that the first car was white and occupied by two
males, and the second was a brown compact and was
driven by a man with a rough complexion similar to the
appellant’s. Appellee also produced, in addition to the
testimony of Davidson and Ogeltree, three other witnesses,
who stated at trial that they had seen the appellant in
Cleveland and free of custody during the period the
records of the Cuyahoga County jail reflect his confinement
therein.
Appellant, in his first proposition of law, does not
argue the inadmissibility of any of the preceding evidence.
Instead, appellant at first reiterates the evidence that was
produced during the trial with respect to his alibi of incar-
ceration in the Cuyahoga County jail on the date of the
murder, i. e.: (1) The court and jail records show he
was in jail on that date; (2) inmates testified that he was
in jail continuously during the period of confinement; and
(3) no evidence of appellant’s escape from or surreptitious
re-entering into the jail was produced at the trial. Appel-
lant then proceeds to recount the evidence presented
against him. He argues with respect to the testimony
of Davidson and Ogeltree that they testified with the hope
of leniency, referring to the Stark County prosecutor’s
promise to send a recommendation to the Governor. Ap-
pellant also states that Ogeltree bore malice toward him
because of appellant’s involvement with Ogeltree’s former
wife. Furthermore, appellant argues that it was revealed
31
at trial that Ogeltree had told three people that appellant
was not involved in the robbery and murder. Concerning
the testimony of Rene Clark, appellant cites her earlier
identification of a person other than appellant as the de-
cedent’s murderer. Moreover, appellant states that there
was testimony that, after Rene Clark failed to identify
appellant in a lineup, she was verbally abused by Sergeant
William Newkirk of the Canton Police Department. Ap-
pellant thus implies intimidation with respect to her in-
trial identification of appellant, but the record reveals
that she denied this and stated that her earlier misiden-
tification was the intentional product of her fear. Appel-
lant continues to proceed with his refutation of appellee’s
evidence. This court, however, discerns little utility in
complete reiteration of appellant’s argument.
It is readily apparent that appellant, in his first propo-
sition, is not asserting the insufficiency of the evidence
presented at trial, but is engaging in an attack on the
credibility of the evidence. Clearly, the evidence produced
by the appellee, “if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt.”
Atkins, supra, at page 546. Credibility is a question of
fact to be determined by the jury and a reviewing court
should not substitute its judgment for that of the jury.
State v. Kehn (1977), 50 Ohio St. 2d 11; State v. Wolery
(1976), 46 Ohio St. 2d 316. This court’s recent statement
in Feliciano v. Kreiger (1977), 50 Ohio St. 2d 69, 72,
is controlling in this cause:
“Since reasonable minds could reach different conclu-
sions concerning this testimony, determination as to what
occurred was a question of fact for the jury. * * * State
v. Antill (1964), 176 Ohio St. 61. This court on review
will not disturb this jury finding so long as there was
competent evidence to support it. * * *”
32
Determining, therefore, upon our review of the rec-
ord that there was substantial evidence presented which,
if believed, would convince the average mind of defendant’s
guilt beyond a reasonable doubt, we find no merit to
appellant’s first proposition of law.
II,
Appellant, in his second proposition of law, alleges
that for the reasons stated in his first proposition the
verdict in the instant cause was clearly against the weight
of the evidence and that the Court of Appeals failed to
weigh the evidence.
We find no merit to appellant’s second proposition
of law. It is the function of the jury to resolve the
facts of the case and determine the credibility of the wit-
nesses before it. State v. Clay (1972), 34 Ohio St. 2d
250. Thus, it is the accepted rule in Ohio that, where
there is a conflict of evidence, the jury is to resolve the
conflict, and its judgment will be affirmed if there is
substantial evidence which, if accredited, would prove all
elements of the crime. State v. Clay (1972), 29 Ohio
App. 2d 206, affirmed State v. Clay, supra (34 Ohio St.
2d 250). In the instant cause, the Court of Appeals stated,
in its opinion:
“Upon a careful consideration of the entire evidence,
we find ample competent evidence, which if believed by
the triers of fact, warrants a finding of guilty beyond
a reasonable doubt of the crime as charged. * * *”
The second assignment of error is, accordingly, over-
ruled.
33
III,
Appellant’s third proposition of law provides: ‘“Evi-
dence should be excluded where it does not logically tend
to prove or disprove an issue in the case or where its
relevancy is outweighed by its tendency to confuse or
mislead the jury.” The evidence complained of by appel-
lant in this proposition concerns his alibi of incarceration
in the Cuyahoga County jail on the day of the murder and
appellee’s attempt to refute the record-keeping system of
the Cuyahoga County jail. We find the Court of Appeals’
resolution of this proposition below to be well reasoned.
Specifically, appellant presented various records of the
Cuyahoga County jail which showed that he should have
been in the jail at the time decedent was killed. The
Court of Appeals found that having offered the records
as proof of the truth therein stated, as well as proof of
the facts reasonably to be inferred therefrom, appellant
placed in issue the credibility generally of the records,
the record-making process and the record keepers.
Upon a review of the contested testimony, we find
that it was relevant, in that it tended to disprove the
accuracy of the jail records, which was a question in dispute
in the instant cause. The contested evidence went to the
credibility of the various jail records by demonstrating
the overall inefficiency of the persons and the system
in which they were maintained and the general lack of
inmate supervision.
Moreover, upon an examination of the record, we find
that the admission of certain of this testimony occurred
without an objection? and that a great proportion of
2. The record reveals that, on the cross-examination of Frank
Urankar, numerous questions concerning gambling in the Cuya-
hoga County jail were asked and answered before appellant’s
(Continued on following page)
34
this testimony occurred during cross-examination. The
trial judge is posited with broad discretion in controlling
cross-examination, and the appellant has the burden to
show a patent abuse of discretion. Sabo v. State (1928),
119 Ohio St. 231; State v. McElroy (1970), 22 Ohio App.
2d 103, 111. We find, in the instant cause, that the admis-
sion of this testimony was relevant to the credibility of
the jail records which support appellant’s alibi and
was neither an abuse of discretion nor a resultant preju-
dicial harm to appellant.
Appellant’s third proposition of law is overruled.
IV.
Appellant, in his fourth proposition of law, argues
that the trial court erred in permitting Ogeltree and David-
son to testify that they had received a threatening note
and that the jail trusty who delivered the note stated
that it was from the appellant. Appellant also contends
that the trial court erroneously admitted the testimony
of one James Curry, that he was told two weeks before
the trial by three men not to testify and that they reminded
him that he had a brother and sister.
Appellant relies on Mefford v. State (1920), 13 Ohio
App. 106, wherein the court stated, at page 107:
“Attempts by persons other than the accused to bribe
witnesses, or otherwise to suppress or manufacture evi-
dence, are evidence against the accused when, but only
when, it is proven that he was connected with such at-
Footnote continued—
counsel objected to the specific question as to the extent of the
gambling.
Lieutenant Steven Popovich also answered questions concern-
ing gambling in the jail on cross-examination, and the record re-
veals no objection to these questions being raised by appellant’s
counsel.
Sl A a EE
35
tempts. Acts and statements of third persons, not known
or authorized by him, are inadmissible.”
However, in Mefford, supra, the court was confronted
not with the actions of the accused, but that of his attorney.
In the instant cause, Ogeltree testified, without objection,
that he received a threatening note which was signed by
the appellant. Davidson testified that when he received
the note its deliverer, a jail trusty, stated that it was from
the appellant.
Furthermore, the Court of Appeals found that this
evidence was made proper because of the opening state-
ment of appellant’s counsel, which inferred that the testi-
mony of the state’s claimed accomplice witnesses was a
recent fabrication prompted by a strong motive to swear
falsely. The Court of Appeals, therefore, held that this
evidence was relevant to show the circumstances under
which the state’s witnesses had been placed by their elec-
tion to testify and specifically for the purpose of showing
that they had something to lose as well as to gain by
testifying.
Assuming, arguendo, that the admission of this testi-
mony was erroneous, upon a review of the entire record,
disregarding the objectionable testimony by Davidson and
Ogeltree, this court finds the error constitutionally harm-
less. Harrington v. California (1969), 395 U. S. 250; Chap-
man v. California (1967), 386 U. S. 18; Schneble v. Florida
(1972), 405 U. S. 427. In Schneble, supra, the United
States Supreme Court stated:
“* * * In Bruton, the Court pointed out that ‘[a] de-
fendant is entitled to a fair trial, but not a perfect one.’ 391
U. S., at 135, quoting Lutwak v. United States, 344 U. S.
604, 619 (1953). Thus, unless there is a reasonable possi-
bility that the improperly admitted evidence contributed
36.
to the conviction, reversal is not required. See, Chapman
v. Calif., 386 U. S. 18, 24 (1967). In this case, we conclude
that the ‘minds of an average jury’ would not have found
the State’s case significantly less persuasive had the testi-
mony * * * been excluded. The admission into evidence
of these statements, therefore, was at most harmless error.”
In the instant cause, since there was the testimony of
at least three persons® as to the appellant’s participation
in the robbery and murder, we find that these statements
of threat about testifying, as relating to the appellant’s
guilt, were merely cumulative of other evidence before
the jury.
The testimony of Curry, concerning the threat he re-
ceived about his testifying, in no manner implied that the
appellant was responsible for the threat. Further, appel-
lant has failed to demonstrate any resultant prejudice from
its alleged improper admission.
Accordingly, appellant’s fourth proposition of law is
rejected.
V. ay
In his fifth proposition of law, appellant states:
“A court order directing that a defendant be incar-
cerated pending a trial cannot be collaterally attacked by
evidence that the defendant was not incarcerated during
this period.”
Appellant, in this proposition, raises an allegation of
error not presented in the court below. In State v. Williams
(1977), 51 Ohio St. 2d 112, this court reaffirmed, in para-
3. Ogeltree, Davidson and Rene Clark all testified that ap-
eee actually participated in the robbery and murder of the
ecedent.
37
graph two of the syllabus, its adherence to the well-estab-
lished law that:
“The Supreme Court will not ordinarily consider a
claim of error that was not raised in any way in the Court
of Appeals and was not considered or decided by that court.
(Toledo v. Reasonover, 5 Ohio St. 2d 22, approved and
followed. )”
Appeliant’s proposition of law No. 5 is rejected.
VI.
In his final proposition of law appellant asserts that
he was denied the due process of the law because the at-
mosphere in and around the courtroom was so hostile as
to interfere with the trial process. Appellant is arguing, in
this proposition of law, that he has a right to be “fairly
tried in a public tribunal free of prejudice, passion, excit-
ment and tyrannical power’’* (309 U. S. 227, 236-237) and
that, in the instant cause, this right was denied him by
the conduct of the judge and prosecutor.
This proposition of law raises, inter alia, the issue
presented to the Court of Appeals concerning the admissi-
bility of the testimony of one John Appling and the inquriy
of other witnesses as to their knowledge of Appling. It
is apparent from the record that appellant at no time ob-
jected to any of the proceedings concerning the testimony
of Appling. Accordingly, the appellant is precluded by
Crim. R. 30 from using this issue on appeal. State v. Wil-
liams, supra (51 Ohio St. 2d 112). We concur with the
Court of Appeals’ resolution of appellant’s contention con-
cerning the questions asked to certain of the defense
witnesses about their knowledge of Appling, who was
supposedly in jail on the date of the murder. The questions
4. Chambers v. Flondie (1940), 309 U. S. 227, 236-237.
38
were appropriate under the totality of the circumstances to
test the recollection and credibility of the witnesses and the
records they purport to support insofar as their accuracy
was concerned and whether they, in fact, reflected the
presence of persons supposedly confined in the Cuyahoga
County jail.
The remaining issues—the misconduct of the prose-
cutor and the trial judge—presented in this proposition
were not raised in the Court of Appeals and need not
be considered herein. Toledo v. Reasonover, supra; State
v. Williams, supra.
Apart from the failure to present these issues in the
Court of Appeals, we find that appellant’s assertions of
errors relating to the misconduct of the prosecutor and
trial judge are totally lacking in substance. The assertion
that the judge’s conduct was not as a disinterested mediator
is premised in part upon the following comment made
by the judge during the testimony of James Miller, a
deputy clerk of courts of the Court of Common Pleas
of Cuyahoga County concerning the records pertaining
to Walker:
“Q. Can you tell me how many other mistakes
you have made?
“Mr. Tolliver: Objection to this, judge.
“The Court: Yes, sustained.
“Q. Nothing further.
“A. Iam nota handwriting expert.
“The Court: That answer will be stricken from
the record. This witness will be admonished from
making a statement without a question before him,
sir. You are not in Cuyahoga County today, and the
jury will disregard it.
re
39
“Mr. Tolliver: Oh, judge.
“The Court: I withdraw that and the jury will
disregard my remarks, too.”
As the record reflects, the trial judge immediately
rectified his statement and admonished the jury to disre-
gard it. This court has examined the other alleged errors,
which mainly relate to the trial judge’s discretion in con-
trol of cross-examination during trial, and, finding them
to be without merit, this court will not address them
herein.
Appellant’s sixth proposition of law is rejected.
Accordingly, the judgment of the Court of Appeals
is affirmed.
Judgment affirmed.
O’NEILL, C.J., HERBERT, P. BROWN, SWEENEY and
LOcHER, JJ., concur.
CELEBREZZE and W. Brown, JJ., dissent.
CELEBREZZE, J., dissenting. Upon review of the record
compiled at the trial of this cause I am of the opinion
that reasonable minds must conclude that appellant’s guilt
was not established beyond a reasonable doubt. I am
therefore constrained to dissent from the majority’s de-
cision to affirm appellant’s conviction and sentence of life
imprisonment.
At the outset of the opinion the majority states that
its review will be confined to a determination of whether
there was substantial evidence present at trial which would
establish appellant’s participation in the robbery-homicide.
The majority then recounts the damning testimony pre-
sented by two incarcerated felons who were convicted
40
as accomplices to this homicide, and who, more than three
years after the homicide, first came forward with informa-
tion as to appellant’s alleged involvement in this crime, -
to be offered in exchange for a recommendation of leniency.
The majority further observes that this inherently suspect
and untrustworthy testimony is buttressed by the testi-
mony of a young woman who was originally unable to
identify appellant in a police line-up, but who, after some
degree of encouragement by police officials, was later able
to positively identify appellant in the courtroom. It is
conceded by the majority that these three individuals were
the only witnesses to testify that appellant actually par-
ticipated in the robbery and murder of the decedent.
Nevertheless, the majority concludes that the state pre-
sented substantial evidence.
As his defense, appellant presented evidence tending
to establish an alibi. The deputy clerk of courts for Cuya-
hoga County appeared as a witness for the defense, and
testified that his records showed that appellant was un-
able to post bond on an unrelated charge, and therefore
was incarcerated in the Cuyahoga County jail during the
period from April 14, 1972, until the charge was dismissed
on August 1, 1972. The prosecution, in fact, stipulated
that the certified copy of the docket entry in the custody
of the deputy clerk indicated that appellant was continu-
ously confined for this three and one-half month period.
Three fellow inmates of the Cuyahoga County jail during
this pertinent period of time also testified that appellant
was never absent from the cellblock, except for occasional
court appearances. Several individuals employed by the
Cuyahoga County sheriff at the time of appellant’s confine-
ment testified that each night a body count was taken,
and that unless this count corresponded with records kept
at the jail’s booking desk a thorough search of the cellblock
would be in order.
41
To overcome this evidence of alibi the prosecution
introduced the testimony of two men, one of whom was
certain he saw appellant on the street in Cleveland in
July 1972, while the other man said he too saw appellant
on the street in the summer of 1972, although he could
not “remember the months and things.” In addition, the
prosecution brought before the jury’s attention a number
of distracting and irrelevant facts garnered primarily from
newspaper articles, and having to do with, among other
things, gambling and the use of drugs in the jail, a hunger
strike by the inmates, and the conviction of a former
jail officer for theft of certain property.
Appellant moved, pursuant to Crim. R. 29, for a judg-
ment of acquittal at the close of the state’s case, and
upon conclusion of the defense. The trial court denied
both motions. It has been suggested that, in determining
the sufficiency of the evidence to withstand a motion for
a judgment of acquittal, the proper test is whether, after
the evidence and all reasonable inferences that may be
drawn therefrom are viewed in the light most favorable
to the state, there must be some doubt in a reasonable
mind as to the guilt of the accused. See State v. Hancock
(1976), 48 Ohio St. 2d 147, 151-152. Similarly, the legal
test for the sufficiency of alibi evidence is whether it
raises a reasonable doubt of guilt. See Walters v. State
(1883), 39 Ohio St. 215; State v. Childs (1968), 14 Ohio
St. 2d 56. In light of the nature of appellant’s alibi evi-
dence, vis-a-vis the evidence presented by the state in
rebuttal of the alibi, there must be some doubt in a reason-
able mind as to the guilt of appellant. To conclude other-
wise is to argue that the average reasonable mind would
be convinced that one confined in the Cuyahoga County
jail could manage to escape therefrom, could travel to
42
another county, there to commit a murder, and could later
re-enter the jail facility, undetected, only to be subse-
quently released by an order of the court. I believe it
patently apparent that such a theory is rife with reasonable
doubt.
Because the prosecution’s case was insufficient to over-
come appellant’s alibi defense the trial court erred in deny-
ing appellant’s motion for ajudgment of acquittal. I must,
therefore, respectfully dissent.
W. Brown, J., concurs in the foregoing dissenting
opinion.
43
JUDGMENT ENTRY OF THE COURT OF APPEALS
(Filed June 29, 1977)
Case No. CA-4529
IN THE COURT OF APPEALS
FIFTH APPELLATE DISTRICT
STARK County, OHIO
THE STATE OF OHIO,
Plaintiff-Appellee,
vs.
RAYMOND WALKER,
Defendant-Appellant.
For the reasons stated in the Memorandum on file,
all five assigned errors are overruled, the judgment of
the Court of Common Pleas of Stark County, Ohio, is
affirmed and this cause is remanded to that Court for
the execution of sentence.
/s/ NORMAN J. PUTMAN
/s/ LELAND RUTHERFORD
/s/ W. W. BADGER
Judges
44
OPINION OF THE COURT OF APPEALS
(Filed June 29, 1977)
Case No. CA-4529
IN THE COURT OF APPEALS
FirTH APPELLATE DISTRICT
Stark County, OHIO
THE STATE OF OHIO,
Plaintiff-Appellee,
vs.
RAYMOND WALKER,
Defendant-Appellant.
PUTMAN, J.
The appellant, Raymond Walker, appeals from a sen-
tence of life imprisonment which was imposed following
his conviction of being the triggerman in the July 22,
1972, killing of an off duty City of Canton Policeman
during an armed robbery of an A & P grocery store
on East Tuscarawas Street in Canton, Ohio.
The conviction came as a result of testimony among
others of two claimed accomplices and a disinterested ci-
vilian eyewitness who positively identified the defendant
in the courtroom.
Upon a careful consideration of the entire evidence,
we find ample competent evidence, which if believed by
the triers of fact, warrants a finding of guilt beyond a
reasonable doubt of the crime as charged. Accordingly,
the first and second assigned errors are overruled.
45
The text of the third assignment of error is “the court
erred in permitting the prosecutor to engage irrelevant,
scurrilous and prejudicial inquiries pertaining to conditions
in the jail at Cuyahoga County”. This assigned error
is overruled for the following reasons.
In this case the defendant-appellant presented the de-
fense of alibi. He claimed he was in Cuyahoga County
Jail at the time of the crime. He presented various records
of the operation of the Cuyahoga County Jail which showed
at least that he should have been in the Cuyahoga County
Jail at the time of the killing. The credibility of the
records of the presence of prisoners in the Cuyahoga
County Jail was crucial. Having offered the records of
the Cuyahoga County Jail as proof of the truth of the
matters therein stated as well as proof of all facts reason-
ably to be inferred therefrom, the defendant placed in
issue the credibility generally of the records, the record
making process, and the record keepers. Upon a careful
consideration of the entire record, we find no error in
any ruling of the trial court respecting admissibility of
the evidence respecting this issue.
The fourth assigned error complains that the court
erred in permitting testimony pertaining to threats and
risks by the state’s accomplice witnesses. It is not well
taken and is overruled. During the opening statement
to the jury, defense counsel told the jury that the state’s
claimed accomplice witnesses, Ogeltree and Davidson, had
previously testified in trials in which they had been the
accused persons and during which they denied any involve-
ment in the robbery and the death of the victim (R.
14). He pointed out to the jury that he claimed there
existed ill will which would motivate Ogeltree to testify
falsely against Walker because he claimed Ogeltree be-
lieved Walker was associated with Ogeltree’s wife (R. 14);
46
that the defense evidence would show that Ogeltree and
Davidson had a conversation in the penitentiary with one
Stretch Meyers who would be called as a defense witness
(R. 15) about giving up a name of a person who could
be accused as the triggerman in the crime so that Ogeltree
and Davidson could receive favorable consideration from
the government (R. 15). The reasonable inference from
these claims was that the two state’s claimed accomplice
witnesses was a recent fabrication prompted by a strong
motive to swear falsely. We hold, upon a careful con-
sideration of the record referred to in this assignment
of error, that the evidence of the state was made proper
by the foregoing and was relevant to show the circum-
stances under which the two state’s witnesses had been
placed by their election to testify and specifically for the
purpose of showing that they had something to lose as
well as something to gain from their testimony. For that
purpose it was relevant and properly admitted. We find
noerror. The fourth assignment of error is cverruled.
The fifth assignment of error complains that the court
erred in ordering a witness, John Appling, to testify and
in permitting inquiries concerning him throughout the trial.
An examination of the record shows that John Appling
was called as a state’s witness and refused to take an
oath (R. 51). Whereupon the court excused the jury and
conducted a lengthy examination of the witness (R. 52-
62). Immediately, the jury was returned to the box where-
upon the witness responded to questions giving his name
and address and indicating that he refused to testify,
whereupon he was excused and the jury recessed for a
regular recess. We find no objection to any of these pro-
ceedings and none has been pointed out to us in oral
argument to the briefs. Therefore the error, if any there
47
was is not cognizable upon appeal. See State v. Gordon,
28 Ohio St. 2d 48.
The other questions put to various witnesses respect-
ing their recollection or knowledge or lack of it of Mr.
Appling were appropriate under the totality of the circum-
stances to test their recollection and credibility. An exam-
ple of this is defense witness, Willie Hightower, a range
boss in the Cuyahoga County Jail at the time in question
who said “Yes, probably” (R. 342), when asked if Appling
was in the Cuyahoga County Jail on the day of the shoot-
ing in question.
The equivocal nature of this response was pertinent
to the nature of the alibi and is typical of the purpose
of the thrust of the type of questions objected to here.
Additionally, we find no motion for mistrial in the
record and none has been pointed out to us in the briefs
or oral arguments.
For the foregoing reasons, all five assigned errors are
overruled, the judgment of the Court of Common Pleas
of Stark County, Ohio, is affirmed and this cause is re-
manded to that court for the execution of sentence.
RUTHERFORD, P.J. and
BADGER, J. concur.
/s/ NoRMAN J. PUTMAN
/s/ LELAND RUTHERFORD
/s/ W. W. BapGER
Judges
48.
JOURNAL ENTRY OF THE COURT OF
COMMON PLEAS
(Filed September 8, 1976)
No. 76-6133
IN THE COURT OF COMMON PLEAS
SrarK County, OHIO
THE STATE OF OHIO,
Plaintiff,
vs.
RAYMOND WALKER,
Defendant-Appellant.
This cause, having been regularly assigned for Trial,
came on for hearing before the Jury, the same being duly
impanelled and sworn, upon the Indictment for the
crime(s) of First Degree Murder, 1 Ct., (R.C. 2901.01)
as charged in the Indictment, and the plea of not guilty
heretofore entered by the Defendant, upon the evidence
produced on behalf of the State of Ohio and on behalf
of the Defendant. The Jury, having been duly charged
as to the law of the State of Ohio, and after due delibera-
tion, agreed upon their verdict, whereupon they were con-
ducted into Open Court in the presence of the Defendant
and his Attorney, and the verdict, signed by all members
of the Jury, was read to the Defendant, and the verdict
given, being such as the Court may receive it, it was
immediately entered in full upon the minutes. It was
the unanimous verdict of the J ury that the Defendant
is guilty of the crime(s) of First Degree Murder, 1 Ct.
(R.C. 2901.01), as charged in the Indictment.
ee
49
Thereupon the Prosecuting Attorney moved that sen-
tence be pronounced against said Defendant.
Whereupon the Court was duly informed in the prem-
“ises on the part of the State of Ohio, by the Prosecuting
Attorney, and on the part of the Defendant, by the Defen-
dant and his Counsel, and thereafter the Court asked
the Defendant whether he had anything to say as to why
judgment should not be pronounced against him and the
Defendant, after consulting with his Counsel, said that
he had nothing further to say except that which he had
already said, and showing no good and sufficient reason
why sentence should not be pronounced, the Court there-
upon pronounced sentence.
IT IS THEREFORE ORDERED, ADJUDGED, AND
DECREED that the Defendant be committed to the South-
ern Ohio Correctional Facility, in Lucasville, Ohio, for
the remainder of his natural life, or until otherwise par-
doned, paroled, or released according to law, on First De-
gree Murder, 1 Ct., (R.C. 2901.01), and
IT IS FURTHER ORDERED, ADJUDGED, AND DE-
CREED that the Court Reporter prepare the Trial tran-
script for Appeal purposes, and
IT IS FURTHER ORDERED; ADJUDGED AND DE-
CREED that the Defendant pay the costs of this prosecu-
tion for which execution is hereby awarded.
/s/ Haroitp E. DEHorFF
Judge
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