Petition — Johnson v. Ohio

Supreme Court brief1979

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i € Court, U.Q °

FILED

IN THE |

‘ . APR 14 197

Supreme Court of the United States .

Ocroser Term, 1978 L_MICHABL RODAK, JR., CLERR

Case No. ERS <= ] 5 v4 3

JOHN JOHNSON,

Petitioner,

—_—vV.—

State oF OHI0,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE

SUPREME COURT OF THE STATE OF OHIO

Bernarp A. BERKMAN

BERKMAN, Gorpon, KANCELBAUM,

Levy and Murray

2121 The Illuminating Building

55 Public Square

Cleveland, Ohio 44113

(216) 781-5245

Attorney for Petitioner

Grorce W. Papa

J. MicnuarL Murray

Of Counsel

TABLE OF CONTENTS

Table of Authorities...........

CAMEOS BOLO i ccc ste ce cctsesecn 1

Jursidiction..... RF ee “o 2

Questions Presented

for Review. . *e *e *ee 7? @€ = - _ 7 - J . 2

Constitutional and Statutory

Provisions Involved.......... 7

Statement of the Case.......... 8

Reasons for Granting

the i *e @ ff @ 14

I. An Important Question is

Presented as to Whether a

Change of Venue or Continu-

ance is Required Where the

Reasonable Likelihood that

Prejudicial Pretrial Publi-

city will Prevent a Fair

Trial has been Shown by the

Voir Dire Examination of the

Jurors and by Affirmative

Proof of Prejudicial Publi-

city, Much of Which has been

Induced by Law Enforcement

Officials and Which Includes

Attacks on the Defendant's

Character, Inaccurate and

Totally Untrue Information,

Evidence Never Offered at

Trial and Facts Which Would

have been Inadmissible at

DEERE Gects ChGhbbatsescacescer L4

-i-

Se EE hk ttt

TABLE OF CONTENTS (Cont. )

II. An Important Question is

Presented as to Whether Peti-

tioner's Fourth and Fourteenth

Amendment Rights Were Violated

by the Introduction at Trial

of Evidence Seized During a

Warrantless Midnight Search

of Petitioner's Automobile

Where the Record Shows Mere

Acquiescence to Authority

Rather Than Consent.....ceeceeee

III. An Important Question is

Presented as to Whether Peti-

tioner's Fourth and Fourteenth

Amendment Rights Were Denied

by the Introduction of Evi-

dence Directly Derived from

the Illegal Arrest of the

PEtitClONEeL. cccccecsccccsessccese

IV. An Important Question is

Presented as to Whether Peti-

tioner's Fourth and Fourteenth

Amendment Rights Were Violated

by the Warrantless Seizure of

Petitioner's Automobile One

Quarter of a Mile from the

Place of Petitioner's Arrest,

and the Subsequent Warrantless

Searches of the Automobile

and the Seizures of Various

Items Which Were Later Intro-

duced in Evidence..cccccccccces

V. An Important Question is

Presented Where an Affidavit

Which Supported the Issuance

of a Warrant for the Search

- ii-

Page

TABLE OF CONTENTS (Cont.)

Page

of Petitioner's Home Failed

to Set Forth Facts to Show

the Basis for a Named Infor-

mant's Conclusory Statements

Which Were Necessary to any

Attempted Showing of Probable

Gio cbncee se Pete te eeabewaeean (“SS

VI. An Important Question is

Presented as to Whether There

was Sufficient Proof that

False Statements Were Included

in a Search Warrant Affidavit

by an Affiant with Reckless

Disregard for the Truth so as

to Have Required that the

Search Warrant be Voided....... 44

VII. An Important Question is

Presented as to Whether Peti-

tioner Made a Voluntary,

Knowing and Intelligent Waiver

of his Privilege to Remain

Silent Where Petitioner was

Subjected to a Lengthy, Con-

tinuous, Night-time, Custodial

Interrogation Prior to Making

Oral and Written Statements.... 47

VIII. An Important Question is

Presented as to Whether the

Petitioner was Denied his Sixth

and Fourteenth Amendment Rights

Where, While Petitioner was

Being Subjected to Lengthy,

Continuous, Custodial Interro-

gation, the Interrogating

Officers Took Affirmative

Steps to Persuade Petitioner's

= 114 ‘=

TABLE OF CONTENTS (Cont. ) TABLE OF CONTENTS (Cont.)

==a° | Page

Wife Not to Secure Counsel Appendix

for Petitioner... ceeeeeeceees 52

Order of the Supreme Court

IX. An Important Question is of the United States

Presented as to Whether Peti- Extending Time to File

tioner's Sixth and Fourteenth Petition for Writ of

Amendment Rights were Vio- COPPER S55 oe hk kee eo cclklc ae

lated by the Use at Trial of

a Statement Which Was Obtained Order of the Ohio Supreme

After Indictment, in the Court Denying Motion for

Absence of Counsel and After SAVERS. ee el ee

Petitioner had Clearly Refused

to Make any Statement Without Order of the Ohio Supreme

the Presence of His Attorney... 53 Court Dismissing Peti-

ere tioner's Appeal of Right..... A3

X. An Important Question 15S

Presented Concerning Enforce- Journal Entry and Opinion

ment of the Rule Established of the Court of Appeals,

in Miranda v. Arizona That Eighth Appellate District,

Where an Individual Indicates Cuyahoga County, Ohio,

That he Wants an Attorney, the Affirming Petitioner's

Interrogation Must Cease Until CORVECECAGRE) ccadicdivewxiscinsn aa

the Attorney is Present........ 57

Excerpts from Application

XI. An Important Question is for Rehearing to the Ohio

Presented as to Whether Peti- Court of Appeals, Eighth

tioner's Sixth and Fourteenth Appellate District........... A37

Amendment Rights Were Violated

by the Admission of Testimony Order of the Court of Appeals,

Concerning the In-court and Eighth Appellate District,

Pretrial, Post-indictment Cuyahoga County, Ohio,

Identifications of the Peti- Overruling Petitioner's

tioner When the Pretrial Motion for Reconsideration... A46

Identification Occurred in

the Absence of Petitioner's Excerpt from Petitioner's

ASCORMEVS.cccccsscccsescscsesesese 59 Memorandum in Support of

Jurisdiction, filed in

Comoluslamicccecccsvenssesveceseee Gi the Ohio Supreme Court....... A47

TABLE OF CONTENTS (Cont. )

Assignment of Errors to the

Ohio Court of Appeals,

Eighth Appellate District.... A5l

Judgment and Sentence in

the Court of Common Pleas,

Cuyahoga County, Onio........ A53

Pretrial Rulings in the

Court of Common Pleas,

Cuyahoga County, Ohio........ A55

Excerpts from Official

Transcript of Proceedings

in the Common Pleas Court,

Cuyahoga County, Ohio -

Rulings on Pretrial Motions.. A57

Excerpts from Official

Transcript of Proceedings

In the Common Pleas Court,

Cuyahoga County, Ohio -

Trial Testimony of Detective

Ferris Concerning Oral

Statement of 11/28/75........ A63

Affidavit for Search Warrant

of Apartment 11/22/75..... eee yk

Constitution of the United

States, Fourth Amendment..... A76

Constitution of the United

States, Fifth Amendment...... A76

Constitution of the United

States, Sixth Amendment...... A76

= et

TABLE OF CONTENTS (Cont. )

Constitution of the United

States, Fourteenth

PRR. 2 Ck Kae EaS 6 CReR ete

Section 2905.01, Ohio

Revised Code..... ey re re ae

Section 2907.02, Ohio

ROVises Coes. s 605. cdi enews

Section 2903.01, Ohio

ROViSCG COGRs <6 625s chek eee

Section 2945.59, Ohio

ROViSOG COGBRs bic i ck vee dm ce 460m

- vii -

TABLE OF AUTHORITIES

Cases

Aguilar v. Texas, 378 U.S.

108 (CL9IGE) ow 06 6 5-0:8.0.0:8 cies se ace ora

Amos v. United States, 225

Geode SAS Cee ae AS 41 Gens i ipaaus

Beck v. Ohio, 379 U.S. 89

$l ¢ | Pee Serre Ce ee

Brewer v. Williams, U.S.

» FF SeGts. Sasa ASST i s.e%s

Brown v. Illinois, 422 U.S.

S90 CLS Fos pic cs hav ii ee ee bees hes

Bumper v. North Carolina,

391 U.S. 543 (1968) ..ccceceeees

Cardwell v. Lewis, 417

UO. cs BES CLEVE) «6 wee ee eee ee es

Carroll v. United States,

IGT UcOc Lae -Laeaet kaweneascuan

Chambers v. Maroney,

399 U.S. 42 (1970)... ceeeccees

Chimel v. California, 395

ee Pa LY Be kp RR reer C

Coolidge v. New Hampshire,

403 U.S. €33 (LOTL) wcccccvcccee

Dyke v. Taylor Implement

Mfg. Co., Inc., 391

U.8s Sh0 CAPOEl 6a 00 € 608% ke

Escobedo v. Illinois,

378 U.S. 478 (1964) ......--eees

- viii -

33,34

29,40

37,38,39

37,38

36,37,39

TABLE OF AUTHORITIES (CONT.)

Estes v. Texas, 381 U.S.

BEA TEPER WAL Sed we bees oe kes

Franks v. Delaware,

a , 98 TR in

BOTS TRO PO Ws 46s 5b e048 coe beaee

Gilbert v. California,

FEU Di BOS (APO) Sead bina w ene

Irvin v. Dowd, 366 U.S.

PP SE OORT Cb bea cee Ka Se we ee

Johnson v. United States,

kk SF SP | 5 ee

Judd v. United States,

190 F. 2d 649 (D.C.

Cate REG os 6 kc bes dee eek ae

Lockett v. Ohio, U.S.

» 26 S.Ce. 2954 (1976) os 6.x

Manson v. Bradwaithe,

SOG WeOs. SE CaPee) oks obee wok ce

Massiah v. United States,

275 U.S. 201 (1964)

McLeod v. Ohio, 1 Ohio St.

Oe SES Poca 6. oe gue ee ee

Michigan v. Mosley, 423

U.S. 96 (1975)

Miranda v. Arizona, 384

U.S. 436 (1966)

- ix -

46,47

7,51,

53,57,58 _

TABLE OF AUTHORITIES (CONT.)

Moore v. Illinois, 0. Ss

~ Be 8.CE. €596- (i976) 2.50%

Murphy v. Florida, 421 U.S.

794 (1975)... ccc cere cccccccces

Pennekamp v. Florida, 328

U.S. 331 (i950) cas eoeeeeve eevee

Preston v. United States,

bi GS Oe! Bk tae

Rideau v. Louisiana, 373

U.S. 723 (1963) ..cccececesecee

Schneckloth v. Bustamonte,

412 U.S. 218 (1973) ..ceceeees

Sheppard v. Maxwell, 384

Biek BAe. VESRED cv cewxek aa esnes :

Spinelli v. United States,

393 U.S. 410 (1969) ....cceeeee

Texas v. White, 423 U.S.

G7 (1975) cccccscccvcccccsccces

United States v. Chadwick,

433 U.S. L CUiST7 ) oe cccwcccccces

United States v. Fuothman,

492 F. 2d 1260 (9th

Cir. 1973) .ccceccccccccccceces

United States v. Wade, 388

U.S. 218 (1967) ..ccwcensecsees

37,38

29,51

23,24

37,38

TABLE OF AUTHORITIES (CONT. )

United States v. Watson,

423 U.S. 411 (1976)

Wong Sun v. United States,

Fourth Amendment

Fifth Amendment

Sixth Amendment

371 U.S. 471 (1963)

Constitutional Provisions

Statutory Provisions

Ohio Revised Code,

Section 2903.01

> P'S 2S 2. OS. 66-8 & eo 6s

United States Code,

Section 1257 (3)

- xi -

3,4,5,

ee ee

26,30,35,

39,47,

6,7,

12,13

&.t.22;

13,52,53,

59,60

2,3,4,

4,5,6,7,-

123513, 26.

30,35,47,

52,53,59,

60,61

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1978

Case No.

JOHN JOHNSON,

Petitioner,

Vv.

STATE OF OHIO,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF OHIO

Petitioner prays that a writ of

certiorari issue to review the judgment

of the Supreme Court of the State of

Ohio dismissing petitioner's appeal for

want of substantial constitutional

question. The dismissal of petitioner's

appeal by the Ohio Supreme Court thereby

affirmed the judgment of the Ohio Court

of Appeals - Eighth District, which had

affirmed petitioner's convictions of

aggravated murder, kidnapping and rape.

OPINIONS BELOW

The judgments of the Ohio Supreme

Court dismissing petitioner's appeal

and denying rehearing are unreported

and are set forth, respectively, in the

rately bound Appendix at A3, A2. The

98. en Fie opinion of the Ohio Court

of Appeals - Eighth District, 1S un~

reported and is set forth in the Appendix

at 44-36. The journal entry of the Court

of Common Pleas, Cuyahoga County, Ohio,

the trial court in this case, is set

forth in the Appendix at A53-54.

JURISDICTION

The judgment of the Ohio Supreme

Court dismissing petitioner's appeal as

of right was issued on November 9, 1978,

Appendix at A3. Petitioner's motion for

rehearing was denied by the Ohio Supreme

Court on December 4, 1978, Appendix at

A2. On February 15, 1979, Mr. Justice

Stewart, upon application by petitioner,

granted an order extending the time

within which to file a petition for a

writ of certiorari to and including

April 14, 1979, Appendix at Al.

This petition seeks review of a

final judgment rendered by the Ohio

Supreme Court, the highest court in the

State of Ohio in which a decision could

be had. This Court has jurisdiction

pursuant to 28 U.S.C. §1257(3) because

rights, privileges and immunities under

the Constitution of the United States

are claimed to have been violated.

QUESTIONS PRESENTED FOR REVIEW

In a state criminal trial, is a

trial court required by the Due Process

Clause of the Fourteenth Amendment to

grant a change of venue or a continuance

where the reasonable likelihood that

prejudicial pretrial publicity will

prevent a fair trial is demonstrated:

(1) by voir dire examination of jurors

in which a substantial number of pro-

spective jurors admit bias or are shown

to be biased and (2) by affirmative

proof of the prejudicial publicity, much

of which has been induced by law enforce-

ment officials and which has included

attacks on the defendant's character,

inaccurate and totally untrue information,

evidence never offered at trial and facts

which would have been inadmissible at

trial?

Is a warrantless search of a locked

automobile which is parked in front of

the home of the owner justified on the.

basis of the owner's consent where the

search is conducted late at night, by

a group of armed, uniformed police who

state they are on official business,

who fail to advise the owner, roused

from sleep, that he may demand a search

warrant and the owner simply does not

resist the directives of the police?

Or, is a search and seizure under these

circumstances violative of the Fourth

and Fourteenth Amendments?

Iit.

If at the time of a warrantless

arrest of an accused, the only facts

which were available to the arresting

officers concerning the accused connected

the automobile belonging to the accused

to an alleged criminal incident separate

from that for which the accused was

arrested, but the facts also indicated

that someone other than the accused was

involved in the separate incident, is

there probable cause for an arrest for

any crime and, if not, were statements

and any other evidence obtained as a

direct result of continuous interroga-

tions from the time of arrest acquired

in violation of the Fourth and Fourteenth

Amendment rights of the accused?

IV.

Is the warrantless seizure of an

arrestee's automobile which is parked

a quarter of a mile from the location

of the arrest, on private property, in

the lawful custody of another, an uncon-

stitutional seizure and are warrantless

searches and seizures of the contents

of the seized car, conducted approxi-

mately seven and fourteen hours after

the initial seizure of the car, also

violative of the Fourth and Fourteenth

Amendments?

Where an affidavit in support of

a search warrant, drafted with the assis-

tance of a lawyer, contains conclusory

statements which are essential to any

attempted showing of probable cause and

which are attributed to a named inform-

ant, but the affidavit fails to set

forth any facts concerning the under-

lying circumstances from which the

informant reached his conclusion and

there are no facts in the affidavit to

show that the informant was credible

cr his information reliable and, further,

facts are set forth which have no seeming

connection to the establishment of

probable cause and no facts to explain

their connection are supplied, does the

affidavit fail to set forth sufficient

facts to enable a magistrate to find

probable cause, and is a search of a

residence pursuant to a warrant, viola-

tive of the Fourth and Fourteenth

Amendment rights of the occupants?

vi.

Should a search warrant have been

voided because false statements had been

included in a warrant affidavit with

reckless disregard for the truth where

the affiant testified at an evidentiary

hearing that, at the time he drafted the

affidavit with the aid of a county prose-

cutor and included an informant's state-

ment concerning an attempted abduction

which was essential to establish probable

cause, the affiant knew that the location

of the attempted abduction was one to

one and one-half miles from where the

murder victim had disappeared and that

the attempted abduction had occurred at

least one-half hour before the murder

victim's disappearance, but the affidavit

as drafted claimed that the abduction

occurred "at or near the area" and "at

or near the time" of the murder victim's

disappearance so that it appeared on

the face of the’ affidavit that the

murder victim was the victim in the

attempted abduction?

Vil.

Where after a defendant is subjected

to lengthy, continuous, night-time,

custodial interrogation, statements are

obtained from the defendant and the

question of whether the defendant was

adequately advised of his rights is

hotly disputed in the record, has the

State failed to satisfy its burden of

proving a voluntary, knowing and intel-

ligent waiver of defendant's rights

under the Fifth and Fourteenth Amend-

ment?

VIII.

Was a defendant denied his rights

to counsel and due process of law in

violation of the Sixth and Fourteenth

Amendments where defendant was arrested

and subjected to lengthy, continuous,

custodial interrogation and the inter-

rogating officers took affirmative

steps to persuade defendant's wife, who

had appeared at the police station, not

to get an attorney for defendant by

advising the wife that there was no

reason to secure an attorney, that she

would be advised when an attorney was

needed and that defendant would be

released as soon as he made a statement

when the officers knew that defendant

was a suspect and was being interrogated

as such?

IX.

Where, in a post-indictment inter-

rogation, a defendant clearly states to

the interrogating officer that he will

make no statements without his attorney

present, the defendant has clearly

invoked his Sixth Amendment right to

assistance of counsel and an oral state-

ment obtained immediately following the

expressed desire for the assistance of

counsel, was the statement obtained in

violation of defendant's Sixth and Four-

teenth Amendment rights?

ana

Where, in a post-indictment inter-

rogation, a defendant states unequivo-

cally that he will not make any statement

without his attorney present, the inter-

rogation must immediately cease and

where a statement is obtained after the

request for the presence of an attorney,

the statement must be suppressed under

the rule established in Miranda v.

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

XI.

Are adefendant's rights to assistance

of counsel and due process of law

violated by the admission at trial of

a witness's testimony concerning pre-

trial, post-indictment identification

of the defendant which was conducted in

the absence of defendant's court-appointed

counsel, and by testimony concerning an

in-court identification where no showing

was made that the in-court identification

was based on observations other than at

the pre-trial, post-indictment identi-

fication and where prior to viewing the

defendant at the pre-trial showup, the

witness, a twelve-year-old child, was

told by police, among other things, that

the defendant had already been picked

out by other children?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The text of the Fourth, Fifth and

Sixth Amendments and the pertinent portion

of the Fourteenth Amendment to the United

States Constitution are set forth in the

Appendix at A76-77. The text of Ohio

Revised Code §§2905.01, 2907.02, 2903.01

and 2945.59 are set forth in the Appendix

at A78-82.

STATEMENT OF THE CASE

Petitioner John Johnson was con-

victed on March 6, 1976, of the kid-

napping, rape and aggravated murder of

Melissa Hinke by a jury in the Common

Pleas Court of Cuyahoga County, Ohio.

The trial -court imposed consecutive

sentences of seven (7) to twenty-five

(25) years for the counts of kidnapping

and rape, and for the count of aggra-

vated murder, the court imposed a

sentence of death. The judgment and

sentence of the trial court were affirmed

by the Ohio Court of Appeals - Eighth

District. While petitioner's appeal to

the Ohio Supreme Court was pending, the

Ohio Supreme Court modified the sentence

of death to life imprisonment, in

response to rulings by this Court that

the Ohio statutory regime for imposing i/

capital punishment was unconstitutional7

The Ohio Supreme Court subsequently

dismissed petitioner Johnson's appeal

for want of substantial constitutional

question.

On Thursday, November 20, 1975,

Melissa Hinke, eight years old, left

her home on West 67th Street in

Cleveland, Ohio, to buy a half-gallon 2/

of milk at a nearby store (41.1831-1832)——

Lockett v. Ohio, v.83. , 98

S.Ct. 2954 (1978).

ef 4

All references to the transcript of

the proceedings in the trial court

will be referred to by the volume

number, the letter "T" and page

number(s) in the transcript.

She left her home at approximately 3:10 p.m.

(4T.1836) with two quart-size Pepsi Cola

bottles, and some change with which to

purchase the milk (4T.1832, 1842), and

never returned (4T.1841). Two days

later, on Saturday morning, November 22,

her body was found in a wooded area

(4T.1993) of the Metropolitan Park

System's Rocky River Reservation (4T.

1989).

Soon after the victim's disappearance,

the news media devoted extensive coverage

to the search for the missing girl and

each succeeding event.3/ The very day

the body was found, Cleveland newspapers

began to focus upon the grisly and brutal

aspects of the crime and the investiga-

tion which supposedly connected Johnson

to the crime (MA2, B3, 4). Front page

and lead story coverage continued through-

out the investigation. By the time of

Johnson's arraignment on November 28,

1975, the community was flooded with

details of the "evidence" of Johnson's

"guilt", much of which was inaccurate,

inadmissible and never offered at trial

(e.g., MA4, 5, 7, Cl, Bly DiF—-18).

John Johnson was in police

custody when Melissa Hinke's body was

found (2T.1106). Police had arrested

Johnson, without a warrant, at about

7:00 p.m. of the prior evening (3T.1243,

1337), and various teams of police had

~ All references to media coverage

will be to Petitioner's Venue Motion

Exhibits filed with the trial court

and will be referred to by the letter

"M" followed by the letter and number

identifying the exhibit.

interrogated him almost continuously

(2T.1103, 3T.1253, 1287, 1348-1349),

without the presence of an attorney,

until shortly after the victim's body

was found. During this overnight period

of interrogation, police obtained oral

and written statements from Johnson.

. Even before discovery of the body,

police had conducted three warrantless

searches of Johnson's automobile (2T.

993-994, 3T.1294-1310). The first

search (for which the sole justification

urged by the State was consent (2T.963-

964)) was conducted by four uniformed

police, shortly after midnight on

November 21, 1975, in front of the

petitioner's apartment (2T.980, 1035,

3T.1336). The other two warrantless

searches were conducted by detectives

while Johnson was in custody and after

Johnson's car had been seized without

a warrant (3T.1251), at a gas station

about a quarter of a mile from where

Johnson had been arrested (3T.1263).

After discovery of the body,

Johnson's home was searched under color

of a search warrant (2T.1142). During

this same period, in connection with the

Hinke investigation, police interviewed

as possible identification witnesses

children and adults who had been con-

fronted or approached by male drivers

of automobiles.

Johnson was indicted on November 25

and arraigned on November 28, 1975.

Upon a showing of indigency, the court

appointed defense counsel to represent

him. Immediately after his arraignment,

Johnson was taken by detectives from the

courtroom to a room in the police

- 10 -

station (2T.1086) where, without an

attorney present (2T.1097), while

surrounded by police and detectives and

dressed in prison clothes (2T.863), he

was viewed by identification witnesses

(2T.1092-1093) and further interrogated .

(2T.1095-1096). A highly incriminating

oral statement was obtained from

Johnson during this interrogation.

At trial, the State offered into

evidence a semen-stained towel (SX12)

and a blue sweatshirt spotted with blood

(SX9-H) which had been seized during the

warrantless searches of the petitioner's

car. Also received in evidence was a

penknife with specks of blood on it

(SXl1). The penknife had been seized

while Johnson was in custody, following

the warrantless seizure of Johnson's

automobile. From the search of Johnson's

home, the State offered a pair of under-

shorts (SX8-K) and a washrag (SX25-E)

which were stained with blood. Extensive

testimony was elicited concerning the

seizure and testing of these items (3T.

1628-1638, 1653-1656, 1659-1675, 1687-

1689, 1692-1695, 4T.2230-2243, 2252-2253,

2257-2261). Some of the testimony

established that the blood on the under-

shorts was not the petitioner's blood-

type, but matched the victim's blood-

type.

Four detectives testified at trial

about the statements obtained from John

Johnson during custodial interrogations

on November 22 and 28, 1975. The jury

also heard "prior acts" testimony

(Revised Code §2945.59, Appendix at 82)

by three young girls concerning alleged

attempts by a man, who the State urged

was Johnson, to entice the girls into

- ll -

his car. Included in the "prior acts"

evidence was the testimony of twelve-

year-old Lisa Chambers concerning her

police station show-up identification

of Johnson on November 28, 1975, immedi-

ately following his arraignment, without

the presence of his court-appointed

attorneys. Lisa Chambers also made an

in-court identification of the petitioner

as the man who talked to her.

Despite clear evidence ,#hown by the

defense in motion exhibits as well as

in the voir dire of prospective jurors

of the prejudicial effect of the massive

barrage of pretrial publicity, a pre-

trial motion by the defense for change

of venue and/or continuance was over-

ruled (Appendix at A56, 2T.783-784). The

motion for change of venue and/or.

continuance was renewed later at trial

and again was overruled (5T.2466, 2470).

Pretrial motions to suppress the

evidence obtained from the searches and

seizures detailed above because of the

violation of petitioner's Fourth and

Fourteenth Amendment rights were over-

ruled by the trial court (Appendix at

A55, A57-58). Similarly, motions to

suppress the custodial interrogation

statements of the petitioner because they

were obtained in violation of petitioner's

Fourth, Fifth, Sixth and Fourteenth

Amendment rights were overruled by the

~ Prior to voir dire, stipulations were

entered into the record concerning

the circulation of the newspapers and

the accuracy of copies of newspaper

articles and television scripts

submitted by the defense.

trial court (Appendix at A55, A58-61), as

waS a motion to suppress the identifi- /

cation testimony of Lisa Chambers

concerning a "prior act" (Appendix at

A55-62).

All of the subjects of the pretrial

motions were asserted in the assignments

of error lodged with the Ohio Court of

Appeals - Eighth District (Appendix at

A51-52). After the court of appeals in

its opinion of Janaury 30, 1978, affirmed

petitioner's convictions (Appendix at

A4-36), petitioner timely applied for re-

hearing and urged that the issues raised

under the United States Constitution

required reversal and that the court of

appeals should consider issues which it

failed to address in its opinion, in-

cluding the constitutional validity of

identification testimony of Lisa Chambers

(Appendix at A37-45). However, rehearing

was denied by the court of appeals with-

Out elaboration (Appendix at A46).

Petitioner next turned to the Ohio

Supreme Court and again raised the same

Fourth, Fifth, Sixth and Fourteenth

Amendment claims in the Propositions

of Law submitted in his brief in support

of appeal as had been raised before

trial court and the court of appeals

(Appendix at A47-50). However, the Ohio

Supreme Court, without opinion, dis-

missed petitioner's appeal for want of

substantial constitutional question

(Appendix at A3) and, subsequently,

denied petitioner's application for

rehearing (Appendix at A2).

REASONS FOR GRANTING THE WRIT guilt of the sensational kidnapping-

; ‘rape-murder. Deputy Coroner Lester

I. Adelson was quoted by the media as

saying that the killing was "one of the

AN IMPORTANT QUESTION IS PRESENTED most disturbing cases I've handled" in

AS TO WHETHER A CHANGE OF VENUE OR 25 years_as coroner (M. A3, A7, B19,

CONTINUANCE IS REQUIRED WHERE THE Dl, F4)*2/ The media frequently referred

REASONABLE LIKELIHOOD THAT PREJUDI- . to the fear and anger of the residents

CIAL PRETRIAL PUBLICITY WILL PREVENT in the community. For example, a

A_FAIR TRIAL HAS BEEN SHOWN BY THE television film report included the

VOIR DIRE EXAMINATION OF THE JURORS following exchange from a resident:

AND BY AFFIRMATIVE PROOF OF PREJUDI- "Tt is awful, it is terrible, a young

CIAL PUBLICITY, MUCH OF WHICH HAS girl like that...Someone should do the

BEEN INDUCED BY LAW ENFORCEMENT same thing to him." (1T.630-631. See

OFFICIALS AND WHICH LNCLUDES ATTACKS also M. A3, Al4-15, C103, D18-19, Ell-

ON THE DEFENDANT'S CHARACTER, IN- 12, 19-20, F115).

ACCURATE AND TOTALLY UNTRUE INFOR-

MATION, EVIDENCE NEVER OFFERED AT Both Cleveland newspapers carried

TRIAL AND FACTS WHICH WOULD HAVE the case as a headline or front-page

BEEN INADMISSIBLE AT TRIAL. story fcr a full week following the

disappearance of Melissa Hinke (M. Al-

The crime with which John Johnson 4, A7, Al2, Bl-5, B7, B9). Cleveland's

was charged was one of the most sensa- three television stations devoted large

tional and horrifying in the experience segments of air time to the details of

of Cuyahoga County, Ohio. During the the crime. Every news show for a com-

three-month period between the victim's plete week, often as the lead story (M.

death and Johnson's trial, the community 'D7, D9, Dll, E8, E16, E19, E22, E27,

in which he stood trial for his life F3, F6, F9), carried news of the crime

was saturated with pretrial publicity and the police investigation focused

of the most prejudicial, hostile and in- upon John Johnson. Film reports in-

criminating kind. All of the newspapers cluded scenes of Johnson's appearances

and television stations in Cuyahoga in court, surrounded by police and

County transmitted in lurid and volu- sheriff's deputies (M. D13-15, D2l, E4-

minous detail daily news accounts of 53:

Melissa Hinke's death, the fears and

outrage of her neighbors, the police

investigation of John Johnson, the chain 5/7

of incriminating evidence against him, ~All references to the Petitioner's

his partial confession of guilt, details Venue Motion Exhibits will herein-

of his character defects, sexual per- after be referred to as "M" followed

versions and prior crimes of a violent by the letter and number(s) identi-

or sexual nature, as well as prior fying the exhbit.

unrelated violent crimes of members of

his family, the opinions of police and

public figures, prior to trial, of his

» 24 «= » 15 .°

Newspaper articles and television

reports wove bits of information with

rumors and innuendoes to connect Johnson

with the crime. On November 24, 1975,

the date of the petitioner's preliminary

hearing, all three television stations

broadcast details of the status of the

case. WJW-TV, Channel 8, began its

6:00 p.m. news show by announcing that

"police believe they have their man in

the brutal murder...." (M. F6). The

news report speculated that "whoever

abducted the girl probably had cruised

this area before." This observation

was followed immediately by the comment

that the petitioner worked at a neighbor-

hood gas station and was arrested after

his license number matched an earlier

report of an attempt to lure a little

girl into a car. The announcer commented

that the petitioner was "isolated" in

jail "for his own protection." WEWS~-TV,

Channel 5, reported that the petitioner

was charged with murder, kidnapping and

rape, and then stated, "police [are]

accusing him of luring Melissa into his

car, attacking her, and then stabbing

and strangling her to death" (M. E17).

In a later WEWS newscast, as the lead

story, a picture of ‘the petitioner was

displayed on the screen and the announcer

stated, "police are saying this man 1s

the one who kidnapped her, raped her,

and then killed her. This is John Albert

Johnson...." (M. E19).

WKYC-TV, Channel 3, featured a film

report of Johnson “as he was being led

into the courtoom...." (M. D13-14). The

news report stated that the petitioner

was ordered held on $750,000 bond and

that "then, a curious thing happened.

Judge Matia told Johnson, 'May God have

mercy On your soul.'" (M. D14). The

newscaster noted that the "comment is

usually reserved for cases in which a

death sentence has been pronounced...."

Channel 3 also reported that Johnson

was traced through his license number

(M. D15), much like the report on Channel

8. All three of the television stations

reported that Johnson's brother was

currently in prison for killing a woman

(M. D17-18, E17, F6). The Cleveland

Plain Dealer also reported this "fact"

iM. AS).

The Plain Dealer reported on

November 24, 1975, that Johnson became

a suspect after he was stopped on the

day of the murder "as a suspicious

character" (totally unsupported by testi-

mony in the record) and was in "isola-

tion...to protect him from other inmates."

(M. A3). On the same date, the Cleveland

Press as a front-page story reported

that police indicated that petitioner

"tried to lure another girl into his

car earlier that day." (M. B5). A

later edition of the Press, in a front-

page story, carried a picture of Johnson

and described his appearance in Municipal

Court. The article repeated the state-

ment that he was arrested "when police

got his license number after he tried

to lure another girl into his car" (M.

B7). Also included were statements that

police "declared they have sufficient

evidence to bring [the petitioner ] to

trial...," that "the suspect allegedly

had traces of blood...on his clothing

and under his fingernails." The article

further detailed the coroner's report

that the victim "had been stabbed

repeatedly in the face, neck, chest and

abdomen. Her face had been battered

“a > ee

instrument," and that she

es ag adh gga ne Ne and sexually molested.

Another article in the Press that day

reported that the police had said

Johnson had "a violent temper when

drinking" (M. B15).

November 25th, the Plain Dealer

akiianen a large front-page photograph

of the petitioner as he left Municipal

Court. The accompanying article ee rs

peated the claim of the attempted abduc

tion of another girl and apnea ee

through license plates. It also state :

that police searched Johnson Ss agpiary

and car and "among the items they saic

they found were a pair of cerns rn sae gre

undershorts in the apartment, blood an

a semen-stained towel in the car. The

article also claimed that a lie detector

test was given to the petitioner and he

"told police he had been in a Lorain :

Ave. adult book store earlier Thursday.

It further reported that "police said

he [Johnson] had magazines portraying

nude children in his possession" (M.

ye The assertion concerning the ae

ession of magazines portraying nu

sag en was totally false. There was

absolutely no testimony in the record

to substantiate such a statement.

Nevertheless, this statement was re-

peated by much of the media (M. Al8,

Cl, C2, El). In fact, Channel 5 con-

cluded a November 25th report on the

case with the remark that police said

the petitioner tried to pick up another

child, that police "found pictures of

nude children in his home and blood-

stained underwear" (M. El, emphasis

added).

A Cleveland Press article on

November 25th carried a headline of

"Police seek swift indictment of sus-

pect...." After describing the slain

girl in her casket, the article dis-

closed in bold-face type, that "blood-

stained undershorts were found in a

trash can at [the petitioner's ] home,"

that there was "blood under his finger-

nails and...a stained towel was found

in the auto." It noted that Johnson

"explained that the blood was the result

of a fight he got into...," that police

"placed" the petitioner "in an adult

bookstore about two hours before Melissa

was kidnapped" and that the petitioner

"claimed he had 'popped a pill' that

afternoon." (M. B16).

The Plain Dealer, ina front-page

story on November 26th, referred to

comments by Art Modell, grand jury fore-

man and Cleveland Browns owner, concern-

ing how disturbing the coroner's testi-

mony in the grand jury had been. The

article then proceeded to itemize all

the "evidence" gathered to prove the

guilt of the petitioner (mM, avs... fe

reported that a police search of

Johnson's home "uncovered a blood-soaked

penknife...bloody undershorts, work

shirt and pants and three wet rags."

The article next shifted to the gruesome

nature of the slaying: "a piece of blue

cloth...knotted so tightly around

Melissa's neck that the imprint of a

button...was left in the skin." Then

shifting back to the police investiga-

tion: "Found in Johnson's car, police

Said, were two empty soft drink bottles,

a semen-stained towel, a piece of bloody

fingernail, strands of brownish-blond

hair and a quart of Lawson Milk Co. milk."

- 19 -

report remarked, "Melissa had been

pase = a Lawson store...." The article

stated that "bits of shrubbery" were .

found in the car, implying that Johnson's

car was at the scene of the crime. The

article next focused on the petitioner,

"in an isolation cell...to protect him

from other prisoners...." The paper

claimed Johnson had said "I don't

remember doing it, if I did it," and

that he had "celebrated his birthday

the day of the murder, "by visiting

several taverns." Also mentioned was

that the appellant "was fined $100.00

in Cleveland Municipal Court for pander-

ing obscenities..." a year earlier. —

Finally, the article noted that public

"Sentiment has been growing for Melissa s

family," and followed with details of

the funeral of the victim. :

The article was highly inaccurate,

inflammatory and prejudicial. Nowhere

in the record is there a shred of testi-

mony concerning a "bloodsoaked" penknife

(see 3T.1660-1661, 47.2240, 2291), or

soft drink bottles somehow connected to

Melissa Hinke (4T.1882, 5T. 2370-2371, .

2385-2386), or a “bloody fingernail"

(3T.1601, 4T.2221-2224, 2263), or strands

of hair belonging to Melissa Hinke

(3T.1628-1629, 1643). The alleged

statement by Johnson, tantamount to a

confession, potentially the most damaging

single piece of publicity, is not sub-

stantiated anywhere in the record.

Cleveland television stations

covered the Hinke funeral extensively.

Juxtaposed with the funeral service

publicity were stories of petitioner's

arraignment. Channel 3 reported that

Johnson was “brought to and from court

under heavy guard" and that he “has been

- 20 -

kept in a-cell by himself because jail

officials fear other inmates could try

to harm him." The film report also

noted that "because the case has stirred

such emotion and received heavy news

coverage...it is almost certain the

trial will be held outside of Cuyahoga

County" (M. D20-21).

The Plain Dealer focused further

attention on the case by devoting a full

page to the case in section one of the

Sunday, December 7, 1975, edition. A

headline asked the question, "Did porn

shops incite killing?" (M. Al5).

Below the headline, the caption on a

photograph of an adult bookstore read:

"A typical Lorain Avenue smut

shop...Police Capt. Jerome

Poelking, chief of detectives,

says police information is

that John A. Johnson, who has

been charged with the rape

murder of 8-year-old Melissa

Hinke, was in a Lorain Avenue

porno store...the morning of

Melissa's disappearance. A

homicide detective said Johnson

had looked at pictures of nude

children while in the store."

(Emphasis added).

On the remainder of the page were

letters to the editor, the texts of

which were based on the details of the

crime which had been publicized by the

media. For example, "Johnson reportedly

told police he had been in a[n]...adult

bookstore...the day of the murder.

Police also said he had in his possession

magazines portraying nude children."

o 2)

Intermittent television and news-

paper coverage of the case continued

until the time of the jury selection

(e.g., M. Al6-18, Bl1-14, C2-3, E9-12,

E29, F18-20).

On the very first day of jury

selection, February 23, 1976, Channel 5

began the first of a series of documen-

tary reports on the subject of child

molesting (1T. 350). The first program

featured an interview with the victim's

mother (1T.351) and contained damaging

remarks about Johnson, including that

Johnson had committed other crimes of

a sexual nature (1T.351), that he had

been under surveillance (1T.351), and

that he attempted to abduct another girl

for sexual purposes (1T.352). Adver-

tisements announcing the start of the

series appeared in the Plain Dealer and

the Press on February 23, 1976 (1T.351).

The effects of this barrage of

publicity were apparent at the voir

dire of the jury. Of the forty-two

talismen who were questioned in regard

to pretrial publicity, eleven persons

volunteered, unequivocally, that they

could not be impartial as jurors because

of bias formed from exposure to such

publicity. All but one of the special

jury panel admitted exposure to the pre-

trial publicity and that they had read

Or seen news reports about the case.

Even after a court admonition against

reading any newspapers or monitoring

radio or television news programs,

almost one-third of the panel admitted

further exposure, either deliberate or

inadvertent, to news media stories about

the trial. In total, almost 40 percent

of the entire panel of prospective

- 22 -

jurors questioned were dismissed on the

basis of some taint as to their inabi-

lity to try the accused impartially.

In their effort to empanel a fair jury,

defense counsel exhausted all of their

peremptory challenges.

During the course of the trial and

hearings on pretrial motions, the court-

room was filled with spectaiurs. In

order to obtain seating, prospective

spectators were searched for weapons by

sheriff's deputies stationed outside

the courtroom doors. Because of crowded

conditions in the courtroom, a table was

provided for the press inside the rail

separating the trial working area from

the spectator section (5T.2467). During

the voir dire, anews reporter copied,

and used in a highly prejudicial news

story (1T.354-355, and see M. Al8), a

confidential psychiatric report on the

sanity of the accused which he took

without authorization from the private

desk area of the judge's bench.

Ultimately, because of the un-

relenting barrage of publicity, the

trial court sequestered the jury. But

the damage had been done.

Although trial courts have initial

discretion to determine whether a change

of venue or continuance should be

granted in a criminal case, such dis-

cretion is limited by constitutional

imperative, “where there is a reasonable

likelihood that prejudicial news prior

to trial will prevent a fair trial...."

(Emphasis supplied). Sheppard v. Maxwell,

384 U.S. 333, 362-363 (1966); accord,

Estes v. Texas, 381 U.S. 532 (1965);

Rideau v. Louisiana, 373 U.S. 723 (1963);

= 23 «

Irvin v. Dowd, 366 U.S. 717 (1961).

Under such circumstances, grant of change

of venue or continuance is constitution-

ally compelled. Sheppard v. Maxwell,

supra. Here, the invidious effect of

pretrial publicity was shown both by

lodging copies of the newspaper articles

and television scripts with the court,

and by voir dire examination of the

prospective jurors.

Furthermore, the record can fairly

be read as revealing a trial judge more

concerned with orchestrating a voir dire

designed to gloss over the problem of

pretrial publicity than he was with

probing deeply so that the effect of the

publicity could accurately be gauged.

For example, the trial judge posed

leading questions to potential jurors

designed to elicit statements of their

ability to be impartial (See 1T.42-44,

47-50, 62). When defense counsel asked

the court to excuse two jurors who had

evidenced bias due to the massive publi-

city, the trial judge accused defense

counsel of posing questions designed to

confuse the jurors (1T.291-297). The

court then posed additional leading

questions to those jurors designed to

cause them to recant their previous

testimony (1T.297-303).

"To deny that bludgeoning or

poisonous comment has power

to influence or at least to

disturb the task of judging

is to play make believe and

to assume that men in gowns

are angels. The psychological

aspects of this problem become

particularly pertinent in the

case of elected judges with

- 24 -

zig

short tenure.” Pennekamp v.

Florida, 328 U.S. 331, 359

(1956) (concurring opinion).

In overruling this assignment of

error, the court of appeals relied

principally upon Murphy v. Florida, 421

U.S. 794 (1975). However, the facts

presented in Murphy are easily distin-

guishable from those presented here.

The Court in Murphy emphasized that most

of the jurors had only a vague recollec-

tion of any publicity concerning the

accused and many jurors considered the

publicity irrelevant, 421 U.S. at 800-

801. This is in sharp contrast to the

profound effect the publicity had upon

prospective jurors in this case.

Furthermore, the Murphy court stated

that it is necessary to "distinguish

between mere familiarity with [the

accused] or his past [as in Murphy] and

an actuai predisposition against him,

just as we have in the past distinguished

largely factual publicity from that

which is invidious or inflammatory."

421 U.S. at 800, n. 4 (see, also, 421

U.S. at 802). In the instant case,

thirteen prospective jurors demonstrated

a clear bias toward Johnson as a result

of publicity directed to this case.

Moreover, this case presents vivid

evidence of publicity which was invi-

dious and inflammatory.

The publicity surrounding this

trial focused on and pointed a guilty

finger at the petitioner; it included

vicious attacks upon his character; it

included inaccurate and totally untrue

information; it reported evidence that

was never offered at trial; it reported

evidence that would have been inadmis-

sible had it been offered at trial,

much of it was induced by law enforce-

ment officials; all of it was untempered

by cross-examination. This case pre-

sents a ripe opportunity for the Court

to reaffirm and clarify a trial court's

duty to effect adequate prophylactic

measures against prejudicial pretrial

publicity in order to assure an accused

a fair trial before an impartial jury..

Petitioner respectfully urges the Court

to grant certiorari and reverse his

conviction.

Il.

AN IMPORTANT QUESTION IS PRESENTED

AS TO WHETHER PETITIONER'S FOURTH

AND FOURTEENTH AMENDMENT RIGHTS

WERE VIOLATED BY THE INTRODUCTION

AT TRIAL OF EVIDENCE SEIZED DURING

A_WARRANTLESS MIDNIGHT SEARCH OF

PETITIONER'S AUTOMOBILE WHERE THE

RECORD SHOWS MERE ACQUIESCENCE TO

AUTHORITY RATHER THAN CONSENT.

Shortly after midnight (2T.980,

1035, 3T.1336), on November 21, 1975,

police officers Hanton, Charvat, McGuire

and Wayne (2T.972) approached John

Johnson's apartment at 2006 West Boule-

vard in Cleveland and knocked on the door

(2T.696). They were investigating the

Melissa Hinke case (T.979, 1031) and

had been requested to check out Johnson's

auto in regard to that case (2T.967).

All four of the police gathered in

the hallway outside of John Johnson's

apartment door (2T.983). Charvat knocked

on the door for a period estimated to

be less than one minute (2T.983).

Johnson had been in bed for approximately

- 26 -

one hour (3T.1333). Prior to that time,

he had not slept for thirty hours (3T.

1334). He got out of bed and answered

the door (3T.1334); he was dressed in

a T-shirt and undershorts (2T.983), and

appeared to have been sleeping (2T.

984).

When Johnson, a short man of small,

thin build (3T.1411), opened the door

to his apartment, four armed, uniformed

policemen were standing there (2T.

985, 3T.1334). Their uniforms, badges

and guns were plainly visible (2T.981l-

982, 1036, 3T.1334). One of the police

officers was very tall and two others

were of medium build. An older man,

wearing glasses, appeared to be in

charge (3T.1410). Either Charvat or

Hanton (2T.1038, 970) announced that

they were on official business (2T.1038);

they wanted to talk to him (2T.970).

After Johnson got dressed, he was

told that they all had to go outside to

his car (2T.989, 1039-1040, 3T.1335,

1377). On the way to the car Officer

Hanton made it plain to Johnson that he

wanted to look in the interior of the

car (2T.992, 3T.1378). Sometime before

reaching the car, one of the policemen

told Johnson to open the trunk of his

car (2T.1040).

All the police walked to the car

with appellant, grouped all around him

(2T.1040), some in front, some alongside

and behind him (2T.993). They remained

in close proximity to Johnson through-

out the search (2T.1040, 1042). Hanton

and McGuire claimed that the police

asked the appellant to open the car

(2T.994, 1041). Johnson testified that

- 27 -

he was told to open the car door (3T.

1335, see also 1384); the police

instructed him what to do (3T.1378),

and he complied (3T.1335, 1337, 1410).

On intense cross-examination,

Johnson maintained consistently that

he did not give permission but was

instructed and simply did not resist

(3T.1378, 1383, 1387). He testified

that “you don't go around telling a law

officer you are not going to do this"

(3T.1415). Johnson was never advised

that he could refuse the search and

demand a warrant (2T.997-998, 1039,

3T. 1336-1337).

Once the doors were opened,

Hanton and McGuire went inside (2T.

994) and searched tle mr with flash-

lights (3T.1382). Hanton determined

what was to be taken (2T.998, 1044,

3T.1336, 1380). Police seized a towel

and two sixteen-ounce Pepsi~Cola bottles

from the car (2T.1027, 1028). After

the search of the entire car was com-

pleted, Hanton advised Johnson that if

nothing showed up in the tests of the

items seized, he would not hear from

the police. If he heard from the police,

there would be trouble (3T.1383, 2T.

999-1000). Johnson was then told by

either Hanton or Charvat that he could

return to his apartment (2T.1043).

The towel, later tested and found

to be semen-stained (4T.2265), the

Pepsi-Cola bottles and a carton of

Lawson's milk, observed but not seized

from the car (2T.1042-1043), were used

in support of the probable cause

alleged in an affidavit in application

for a warrant to search the appellant's

home shortly thereafter. The semen-

- 28 -

stained towel was admitted at trial

(5T.2448), over objection, as State

Exhibit 12. The State's only justifi-

cation for this search was its claim

that appellant consented to it (27.963,

964) ~6/ On the basis of the alleged

consent, the trial court overruled

appellant's motion to suppress (3T.

43533) 3

A prosecutor has the burden of

proving that consent was freely and

voluntarily given. Bumper v. North

Carolina, 391 U.S. 543 (1968). This

burden cannot be discharged by showing

no more than acquiescence to a claim of

lawful authority. Id. Schneckloth v.

Bustamonte, 412 U.SW®218 (1973), teaches

that in determining whether a claimed

consent is in fact voluntary, voluntari-

ness "is a question of fact to be deter-

mined from the totality of all the

circumstances," Id., at 227. Schneckloth

v. Bustamonte, supra, 412 U.S. at 229,

mandates consideration of the "vulnerable

subjective state of the person" who has

allegedly consented. Moreover, courts

must be especially alert for coercion,

express or implied, no matter how subtle.

Id., at 228.

Viewed in their totality, the facts

here amount to nothing more than a tired

_6/

From the inception of the motion

hearing, the prosecution's only justi-

fication for the search of the appel-

lant's car at midnight on November 21,

1975, was its claim of consent by the

appellant (2T.963, 964) and testimony

was limited to that question by the

trial court (2T.978).

- 29 -

and intimidated individual of slight

stature who, awakened from sleep, unin-

formed of his rights and confronted by

four armed police officers in the middle

of the night, submitted to the demands

of open and obvious police authority.

As such, the only conclusion possible

is that the State utterly failed to meet

its burden of proving a free and volun-

tary consent, and the trial court's.

denial of appellant's motion to suppress

was clearly erroneous. See Amos V.

United States, 225 U.S. 313 (1921);

Johnson v. United States, 333 U.S. 10,

68 (1948). Therefore, certiorari should

be granted and petitioner's convictions

should be reversed.

Til.

AN IMPORTANT QUESTION IS PRESENTED

AS TO WHETHER PETITIONER'S FOURTH

AND FOURTEENTH AMENDMENT RIGHTS

WERE DENIED BY THE INTRODUCTION OF

EVIDENCE DIRECTLY DERIVED FROM THE

ILLEGAL ARREST OF THE PETITIONER.

John Johnson was arrested without

a warrant by Cleveland detectives on

November 21, 1975, at approximately

7:00 p.m. while at work at a gasoline

station (317.1243, 1249, 1251, 1284).

Detectives Murphy and Mulhull wanted

Johnson to make a statement at the

police station concerning his activities

on November 20th (3T.1338). When

Johnson told them he couldn't leave his

job (3T.1338), he was arrested (3T.1249,

1251, 1284, 1338) and subsequently

booked in connection with the dis-

appearance of Melissa Hinke (3T.1255,