Petition — Ohio v. Korn

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IN THE AB RopaK, IR. CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

nNo.-—-69- 91

STATE OF OHIO,

. Petitioner,

Vs.

DONALD L. KORN,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

JOHN F. HOLCOMB

PROSECUTING ATTORNEY

BUTLER COUNTY, OHIO

Butler County Courthouse

Hamilton, Ohio 45011

Telephone (513) 867-5722

DANIEL G. EICHEL

ASSISTANT PROSECUTING

ATTORNEY

ATTORNEYS FOR

PETITIONER

ERT I NER LANNE TORN A MT NL,

COURT INDEX PRESS, INC. — 215 E. Ninth Street, Cincinnati, Ohio 45202 — (513) 241-1450

INDEX

Page

EEE oo os ech rss alee Renta ]

NE Mo ie sis poken s va cee 2

(ae 6 eee TE RD EO es 2

CONSTITUTIONAL PROVISIONS INVOLVED .. 3

STATEMENT OF THE CASE ...:.........:.... 3

i ply ae iulsiewanhon 3

B. Manner in Which the Federal Question was

OSS SIRENS place ta aR Oates ia apie 7

REASONS FOR GRANTING THE WRIT ........ 8

EERE, te ae ee ee Soe ee eRe Ae 14

APPENDIX A

Judgment Entries of the Supreme Court of Ohio .. la-3a

APPENDIX B

Decision and Entry of the Court of Appeals,

Butler Co., First Appellate District of Ohio .. 4a-22a

APPENDIX C

Findings and Entry of the Court of Common

Dee We 5 a sa etre 23a-27a

APPENDIX D

Decision of the Supreme Court of Indiana, in 379

RE Sg ec: | ee 28a-35a

APPENDIX E

State’s Exhibit 20 Transcript of Miranda Rights

and Advice and Waiver Execution ........ 36a-38a

aaa alaaaaar ae eae amen

II.

AUTHORITIES

Cases: Page

Biddy v. Diamond, 516 F.2d 118 (5th Cir. 1975) ..:. 13

Brewer v. Williams, 430 U.S. 387 (1977) ...... 10, 14

Escovedo v. Illinois, 378 U.S. 478 (1964) .......... 1]

Korn v. State of Indiana, 379 N.E.2d 444 (Ind.

MS ee ond? Gn ake ise 6 8 ee eS

Michigan v. Mosley, 432 U.S. 96 (1975) ........ 10, 14

Miranda v. Arizona, 384 U.S. 436 (1966) .. 2, 4, 7, 8,

®, 11, 2

Rhode Island v. Innis, No. 78-1076, cert. granted,

ee meme Gee. Neer a a 14

United States v. Dority, 487 F.2d 846 (6th Cir. 1975) .. 13

United States v. Grant, 549 F.2d 942 (4th Cir.

PUR: OR. eriati ate ta cae ign eGo swe a 13

United States v. Hauck, 586 F.2d 1296 (8th Cir.

ST. «aan et sg cary 5a Uae OS eae 13

United States v. Hodge, 487 F.2d 945 (5th Cir.

eB Ace Nes! gn axe tcc A ail WRT EM 13

United States v. Pheaster, 544 F.2d 353 (9th Cir.

IN el tke AE a ee ea a 13

United States v. Rodriguez-Gastelum, 569 F.2d 482

gp de aa Dicey Gan hia 13

United States v. Springer, 460 F.2d 1344 (7th Cir.

SEE es Wa siete ok sanees (vat waa bhnS 13

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

NO. ———-———

STATE OF OHIO,

Petitioner,

VS.

DONALD L. KORN,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

The Petitioner, State of Ohio, respectfully prays that

a Writ of Certiorari issue to review the judgment and

opinion of the Court of Appeals, First Appellate District

of Ohio, entered in this proceeding on April 4, 1979, a

motion for leave to appeal having been denied ir the

Supreme Court of Ohio on September 13, 1979.

OPINIONS BELOW

The opinion of the Court of Appeals for Butler County,

First Appellate District of Ohio, is unreported and is ap-

pended as Appendix B. The judgment entries of the

Supreme Court of Ohio overruling Petitioner’s motion for

leave to appeal and dismissing said appeal are appended as

2

Appendix A. An opinion and entry of the Court of Com-

mon Pleas of Butler County, Ohio, are appended as Ap-

pendix C, and a related case, Donald Lee Korn v. State

of Indiana, is reported at 379 N.E. 2d 444 (Ind. 1978),

and is appended as Appendix D.

JURISDICTION

The judgment entries of the Supreme Court of Ohio de-

nying further appellate review were filed on September

13, 1979, and this petition is filed within ninety (90) days

of that date, pursuant to Rule 22 (1). The jurisdiction

_of this Court is invoked under 28 U.S.C. § 1257 (3).

QUESTIONS PRESENTED

I.

Whether and under what circumstances an accused may

waive his Miranda rights subsequent to an election to con-

sult with counsel prior to questioning by authorities.

II.

Whether Miranda v. Arizona, 384 U.S. 436 (1966) , cre-

ated a per se rule that an accused’s original request to

consult with counsel prior to questioning at his arrest

precludes a state trial court’s finding that an express, af-

firmative waiver of the right to counsel by the accused three

days later was valid under all the facts and circumstances

of the case, including where the accused did avail himself

of counsel as weil as advice of family members and a

friend, discharged an aitorney retained for him, and re-

quested to talk to police who again fully advised the ac-

cused of his constitutional rights prior to his waiver and

the making of incriminating statements.

|

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment V_ which

provides:

No person. . . shall be compelled in any criminal case

to be a witness against himself, nor be deprived of life,

liberty, or property, without due process of law. . .

United States Constitution, Amendment VI, which

provides:

In all criminal prosecutions, the accused shall enjoy

the right . . . to have the assistance of counsel for his

defense.

United States Constitution, Amendment XIV, Section I:

. . . [NJor shall any State deprive any person of life,

liberty, or property, without due process of law. . . .

STATEMENT OF THE CASE

A. Relevant Facts:

Respondent, Donald L. Korn, was convicted of the Ag-

gravated Murder of one Mildred Ruth Doench. Certain

admissions made by Korn three days after his arrest in

the state of Indiana on another charge were used against

him at trial. |

On July 13, 1974, Mrs. Mildred Ruth Doench was

brutally raped and murdered at her rural home near Ham-

ilton, Ohio. Discovered the next day by a friend, the

seventy-two year old widow was found lying on the floor

with two stab wounds to the heart and two chop wounds

4

to the face, the latter inflicted with a mattock still deeply

imbedded. Autopsy confirmed that rape had been com-

mitted upon Mrs. Doench, a retired school teacher.

Having been identified as Being in the vicinity of the

Doench home under peculiar circumstances on the eve-

ning of July 13, 1974, respondent Donald L. Korn was

initially considered a suspect and was contacted at his

Fairfield, Ohio, home in July or August of 1974 by of-

ficers of the Butler County Sheriff's Office. After being

fully advised of his rights, Korn declined to discuss the

maxter with them until he had consulted a lawyer, and

the investigators terminated all contact with Korn at that

tuume.

Five months later, on January 27, 1975, Korn was ar-

rested in Jeffersonville, Indiana, for assaulting a young

lady in that community. He was fully advised of his rights

in accordance with Miranda v. Arizona, 384 U.S. 436

(1966) , by arresting officer Lieutenant Ronald Kemp, both

immediately at arrest and again as part of the booking

process at police headquarters; at both times Korn indi-

cated he understood his rights, and at headquarters he

stated he did not wish to talk at that time, he wanted

to contact an attorney first. With that, no further conversa-

tion took place between Korn and any investigating officer

on January 27th or 28th. Korn did, howe-er, contact his

family and attorney in Ohio, and on January 28th Korn

visited briefly with certain members of his family and met

with a local Indiana attorney, a Mr. Binus.

On the afternoon of January 29th, Major John Bohlen

of the Butler County Sheriff's Office went to Jeffersonville

and spoke briefly with Korn, who when simply asked

if he wanted to talk to Bohlen, denied the Doench slaying

and requested Bohlen to call his mother and wife to ar-

5

range a meeting the next day between the three of them,

alone; Bohlen then left for Ohio to do so. Later, Korn

was served with warrants charging the stabbing, rape and

robbery of an elderly Jeffersonville, Indiana woman (See

Donald Lee Korn v. State of Indiana, Appendix D), and

was advised that his rights as given before were still in

effect. That evening, Korn asked to see Lt. Kemp, and

requested to see, in the following order, his sister, his

mother, and wife, and a family friend, first individually

and then all together; then he wished to speak with Major

Bohlen, and finally Lt. Kemp.

Arrangements were made for the requested meetings to

take place, and on January 30, 1975, Korn’s family went

to Jeffersonville and hired a local attorney, Mr. Lanning,

who advised a county jailer that no one was to talk to

Korn. Lt. Kemp, being so advised, explained to the family

that he and Major Bohlen, as police officers, could not

honor Korn’s request to see the officers, but did arrange

an hour-long private meeting between Korn, the family

and friend, lasting until about 2:00 p.m. As the meet-

ing ended and they broke for lunch, the family was dis-

cussing whether to continue to retain the attorney, and

one indicated in the officers’ presence that it was Korn’s

decision, ‘“‘and he says he doesn’t want an attorney.”

The family returned after lunch and at about 4:00

p-m., met with Attorney Lanning for approximately twenty

minutes, after which the attorney walked out of the con-

ference room, advised the police that he was discharged,

and left the police station. Korn again met with his family,

making arrangements to transfer property to his wife and

to obtain certain personal items and clothing to be brought

to the jail; at 5:30 p.m., the family left for Ohio.

Thereafter, at 6:25 p.m., Korn was advised of his rights

6

by Major Bohlen and was read a “Waiver of Rights” form,

which he said he understood and signed. Korn proceeded

to tell his activities on the night of July 13, 1974, but

claimed a “blackout” at the point where he drove into Mrs.

Doench’s driveway. Major Bohlen ceased the interview,

Korn requested and attempted to make phone calls to

his wife and sister, and drank coffee with Lt. Kemp.

At 8:30 p.m., Korn again advised that he wished to

make a statement to Major Bohlen but first wanted to

call his wife. Asked by Bohlen what he was going to

say, Korn blurted out that he “stabbed Mrs. Doench, got

the mattock and laid it in her head.” Major Bohlen

abruptly ceased the interview with this, and Korn made

the requested phone call.

At 8:40 p.m. in a sequence of events that was tape-re-

corded, transcribed by Major Bohlen to a type-written

statement and signed by Korn, (Appendix E), Korn was

completely advised of his rights, again signed a waiver

form and acknowledged that he understood his rights and

wavied them without promise or coercion, and thereafter

made a complete confession that he stabbed Mrs. Doench,

raped her, and bludgeoned her in the face with the mattock,

tracing his route to and from the Doench house on the

evening of the homicide.

Moments following the Doench murder confession, Korn

spoke to Lt. Kemp, was again advised and waived his rights,

and admitted cutting the throat of Dorothy Hendron, an

Indiana resident, and raping her. (Appendix D, Donald

Lee Korn v. State of Indiana) Thereafter, he signed each

page of the two type-writtea statements and drew a sketch

of the Doench house. Only at the conclusion of the state-

ments did Korn indicate he wanted to have a lawyer.

7

Significantly, on February 1, 1975, at Korn’s request and

with his retained attorney’s permission, Korn in the pres-

ence of his attorneys accompanied law enforcement officers

back to Butler County, Ohio to the Doench house, to point

out certain locations and trace his route, as he had in-

dicated he would do in his statement of January 30th.

B. Manner in Which the Federal Question was Raised:

The federal question presented herein was originally

raised by respondent Korn in a motion to suppress the

statements made to Major Bohlen, alleging that the same

were involuntary or were otherwise obtained in violation

of the rights guaranteed by the Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution.

In the Court of Common Pleas for Butler County, Ohio,

a three-judge panel heard evidence on the motion to sup-

press and unanimously overruled the motion, filing a de-

tailed Finding of Fact and Conclusion of Law. (Appendix

C.) The trial court determined the facts essentially as the

state’s evidence tended to establish, concluding that the

statements were admissible. The statements were used

against Korn at trial and conviction resulted.

Respondent Korn reiterated his Federal Constitutional

claim, successfully, in the appeal to the Court of Appeals

for Butler County, First Appellate District of Ohio. Re-

versing the trial court’s judgment on this issue and or-

dering a new trial, the appellate court decision was based

exclusively on an interpretation of the Federal Constitu-

tion and Miranda v. Arizona, 384 U.S. 436 (1966), or

citations to federal cases interpreting Miranda. There are

no references to state statutory or constitutional grounds.

(Appendix B.)

8

The Supreme Court of Ohio overruled the Petitioner’s

motion for leave to appeal, which asserted error in the

judgment of the Court of Appeals on this federal consti-

tutional question. The issue is therefore properly the sub-

ject for review by this Court on writ of ceztiorari.

REASONS FOR GRANTING THE WRIT

I. The Ohio Court of Appeals has decided a sub-

stantial question of Federal Constitutional law not

heretofore determined by this Court, and in a manner

not in accord with applicable decisions of this Court.

The questions presented by Petitioner have yet to be di-

rectly addressed by this Court, and have been erroneously

answered in the court below. Presented unequivocally in

this record are the questions of whether a defendant may

subsequently waive his right to consult with counsel prior

to questioning once he has initially invoked the right to

counsel; and specifically, whether the invocation of the

right to counsel, per se, indefinitely precludes all subse-

quent questioning by law enforcement officers, even where

the initial request is scrupulously honored, where no

questioning ensues thereafter and the accused is afforded

the opportunity to consult with cou.ssel, family and friends,

but where, after three days, the accused chooses to fore-

go available counsel in favor of his desire to talk with

police, who issue fresh Miranda warnings and the accused

makes an informed, voluntary, express waiver of his Miran-

da rights and makes voluntary statements.

The Ohio Court of Appeals, while disavowing 2 per se

rule, held that Respondent could not be interrogated sub-

sequent to his election to consult with counsel before ques-

tioning at his arrest. All questioning thereafter was barred,

9

the court below held, by the following passages in Miranda

v. Arizona, 384 U.S. 436, 473-474 (1966) :

Once warnings have been given, the subsequent pro-

cedure is clear. . . . If the individual states that he

wants an attorney, the interrogation must cease until

an attorney is present. At that time, the individual

must have an opportunity to confer with the attorney

and to have him present during any subsequent ques-

tioning. [Id.]

However, the decision of the Court below did not take

note of statements in subsequent paragraphs which indi-

cated that a waiver of Miranda rights even after invoca-

tion may be ‘effective:

If the interrogation continues without the presence of

an attorney and a statement is taken, a heavy burden

rests on the government to demonstrate that the de-

fendant knowingly and intelligently waived his privi-

lege against self-incrimination and his right to retained

or appointed counsel. . . .

An express statement that the individual is willing to

make a statement and does not want an attorney fol-

lowed closely by a statement could constitute a waiver.

[Id. at 475.]

Just such an express waiver exists in the record, (Appendix

E) , and the trial court had indeed found as fact that the

State had met its “heavy burden” of demonstrating this

waiver, which had occurred after Korn did exercise the

“opportunity to confer with the attorney,” and when Korn

had, on his own, foregone “‘the right to have [the attorney]

present during any subsequent questioning.” Thus, the

question as presented in this case is solely one of federal

constitutional law.

10

This Court's decisions after Miranda strongly dictate a

result contrary to the Ohio Court’s literal application of the

Miranda phrase. The first of such cases is Michigan v.

Mosley, 423 U.S. 96 (1975), dealing with an issue closely

akin to the present one, i.e., whether and under what

circumstances a defendant may waive his Miranda rights

subsequent t» an election to remain silent. Noting that

resolution of the matter turned almost entirely on the in-

terpretation of a similar passage of Miranda which states

that “the interrogation must cease” when the person in

custody indicates that “he wishes to remain silent,” 384

U.S. at 474, this Court observed that either extreme of

literal interpretation could lead to absurd and unintended

results, and while finding that the passage did not intend

merely a momentary pause in interrogation, the M osley

decision also concludes,

Clearly, therefore, neither this passage nor any other

passage in the Miranda opinion can sensibly be read to

create a per se proscription of indefinite duration upon

any further questioning by any police officer on any

subject . . . . [Id. at 102-3]

Since both the assertion of the right to remain silent and

invocation of the right to counsel were described in Miran-

da as equivalent means to ensure the critical safeguard in

custodial interrogation i.e., the “right to cut off question-

ing,” it follows that, as in Mosley, the invocation of right

to counsel per se should not operate to indefinitely pre-

clude further conversations, but rather admissibility of

subsequent statements should turn, in part, on whether the

“right to cut off questioning” is “scrupulously honored.”

Id. at 104.

In Brewer v. Williams, 430 U.S. 387 (1977), this Court

had occasion to review a case where the accused had ob-

1]

tained counsel prior to being in custody; Williams had in

fact indicated he was not desirous of giving any informa-

tion in the absence of his attorney, but during his neces-

sary transportation incommunicado from one city to an-

other, detectives intentionally elicited incriminatory state-

ments. This Court emphasized that there was no evi-

dence to support a waiver of the right to counsel, and

under the principles of Miranda and Escobedo v. Illinois,

378 U.S. 478 (1964), the statements were inadmissible.

However, this Court significantly noted:

The circumstances of record in this case thus pro-

vide no reasonable basis for finding that Williams

waived his right to the assistance of counsel.

The Court of Appeals did not hold, nor do we, that

under the circumstances of this case Williams could

not, without notice to counsel, have waived his rights

under the Sixth and Fourteenth Amendments. It only

held, as do we, that he did not. [430 U.S. at 405-6]

Implicit in this reasoning, as noted in concurrence by

Mr. Justice Powell, 430 U.S. at 413, is that “the right

to assistance of counsel may be waived after it has at-

tached, without notice to or consultation with counsel.”

This Petition presents such a case, where the trial court

specifically found that the police officers refrained from

coercion and interrogation after the assertion of right to

counsel, and that Korn freely on his own initiative chose

to waive the rights to counsel and to remain silent, and

confessed the crime.

12

II. The decision of the Ohio court below is in

direct conflict with the decision of the highest court

of the State of Indiana on the identical facts of the

case, and in conflict with decisions of federal courts

of appeals.

The most provocative feature of the instant case is that

the Supreme Court of Indiana in Korn v. State, 379 N.E.

2d 444 (Ind. 1978) (Appendix E) has also reviewed the

same events and issues in question here, applied federal

constitutional law to the case, and held that a confession

by Korn to Lt. Kemp on the Indiana stabbing and rape,

made just moments after Ohio crime confession, was ad-

missible, and “that the evidence, when viewed as a whole,

was sufficient to establish a knowing and voluntary waiver

by [Korn] of his right to counsel before questioning.” Jd.

at 448.

Here is presented a quite uncommon situation — ap-

pellate courts of two sister states, where the analysis is

of the same events, the same parties are involved, at the

same place and same time, with the same advice given

and the same acts constituting discharge of a retained at-

torney and express waivers of Miranda rights by the ac-

cused before his confessions. The same federal law is in-

terpreted, but the Ohio conviction falls while the Indiana

conviction stands. The juxtaposition shows the compelling

necessity that this Court determine the so-called guide-

lines by which law enforcement officers should conduct

their investigations.

It is further instructive to note that the U.S. Courts

of Appeals presented with the issue have concluded that

the Miranda opinion does not create a per se proscription

of all further interrogation once the person being ques-

tioned has indicated a desire to consult with an attorney.

13

Representative cases concluding that under their particu-

lar circumstances, statements made subsequent to a de-

fendant’s request for counsel were admissible, that a de-

fendant may waive the right to counsel after he first as-

serted it, and that Miranda did not erect an indefinite or

absolute per se bar to any further conversation with an

accused, are as follows:

FOURTH CIRCUIT: United States v. Grant, 549 F.

2d 942 (4th Cir. 1977), cert. denied, 432 U.S. 908

(1977)

FIFTH CIRCUIT: United States v. Hodge, 487 F. 2d

945 (5th Cir. 1973) and Biddy v. Diamond, 516 F. 2d

118 (5th Cir. 1975)

SIXTH CIRCUIT: United States v. Dority, 487 F. 2d

846 (6th Cir. 1975)

SEVENTH CIRCUIT: United States v. Springer, 460 F.

2d 1344 (7th Cir. 1972), cert. denied, 409 U.S. 873

(1972)

EIGHTH CIRCUIT: United States v. Hauck, 586 F. 2d

1296 (8th Cir. 1978)

NINTH CIRCUIT: United States v. Pheaster, 544 F.

2d 353 (9th Cir. 1976), cert. den. sub. nom. Inciso v.

United States, 429 U.S. 1099 (1977) and United States

v. Rodrigues-Gastelum, 569 F. 2d 482 (9th Cir. 1978)

(en banc)

From the foregoing it appears that the Ohio Court of

Appeals has interpreted federal law in complete conflict

with all U.S. Courts of Appeals which have decided this

issue. This clear and fundamental conflict requires im-

mediate resolution.

14

CONCLUSION

This Court has twice deferred a definitive ruling as to

whether and under what circumstances further question-

ing of a person may occur subsequent to a request to

consult with an attorney. Michigan v. Mosley, 423 U.S.

96, 102 fn. 7 (1975); Brewer v. Williams, 430 U.S. 387,

405-406 (1977). Neither case was the appropriate vehicle

for clarification of this issue on its own particular facts.

In both cases, however, this Court has indicated that even

though a suspect might have invoked his Fifth Amend-

ment rights by asking for counsel, it might still be possible

that subsequent voluntary statements of the accused, not

prompted by insistent custodial interrogation, would be

admissible if the State could show they were the product

of a voluntary, informed decision of the accused to waive

the rights he had asserted. Such a rule is entirely con-

sistent with the purpose of the Miranda decision, which

concluded:

Our decision is not intended to hamper the tradi-

tional function of police officers in investigating

Game... .

Confessions remain a proper element in law enforce-

ment. Any statement given freely and voluntarily

without any compelling influences is, of course, ad-

missible in evidence. [384 U.S. at 478]

This Court has determined to hear a factually similar

case, in Rhode Island v. Innis, No. 78-1076, cert. granted,

59 L.Ed.2d 492 (1979), argued October 30, 1979, where

the issue was Z suppression of evidence pointed out to

police by a defendant after waiving his Miranda rights al-

though he first had requested an attorney. This Petition

15

presents the more direct issue, whether the full confession

to a crime is admissible under similar circumstances.

To resolve the conflicting interpretations of federal law

among jurisdictions as to this issue, and to guide the de-

cision and actions of judges, prosecutors and law enforce-

ment officers caught in this conflict, a writ of certiorari

should issue to review the judgment and opinion of the

Court of Appeals for Butler County, First Appellate Dis-

trict of Ohio, herein.

Respectfully submitted,

JOHN F. HOLCOMB

Prosecuting Attorney

Butler County, Ohio

DANIEL G. EICHEL

Assistant Prosecuting Attorney

Butler County, Ohio

Attorneys for Petitioner

Butler County Courthouse

Hamilton, Ohio 45011

Telephone (513) 867-5722

Re

APPENDIX A

THE SUPREME COURT OF OHIO

THE STATE OF OHIO, ) 1979 TERM

City of Columbus. ) To wit: September 13, 1979

|

| No. 79-730

STATE OF OHIO,

Appellant and Cross-Appellee,

vs.

DONALD L. KORN,

Appellee and Cross-Appellant.

APPEAL AND CROSS APPEAL

FROM THE COURT OF APPEALS

for Butler County

(Received September 18, 1979)

This cause, here on appeal and cross appeal as of right

from the Court of Appeals for Butler County, was heard

in the manner prescribed by law, and, no motion to dis-

miss such appeal having been filed, the Court sua sponte

dismisses the appeal for the reason that no substantial con-

stitutional question exists herein.

It is further ordered that a copy of this entry be certified

to the Clerk of the Court of Appeals for Butler County

for entry.

la

2a

I, Thomas L. Startzman, Clerk of the Supreme Court of

Ohio, Certify that the foregoing entry was correctly copied

from the Journal of this Court.

Witness my hand and the seal of the

Court this... dayof....... ie

Spe Ty ica ing whe ney AS Clerk

THE SUPREME COURT OF OHIO

THE STATE OF OHIO, ) 1979 TERM

City of Columbus. ) To wit: September 13, 1979

No. 79-730

STATE OF OHIO,

Appellant and Cross-Appellee,

Vs.

DONALD L. KORN,

Appellee and Cross-Appellant.

MOTION/CROSS MOTION FOR LEAVE TO APPEAL

FROM THE COURT OF APPEALS

for Butler County

(Received September 18, 1979)

It is ordered by the Court that this motion/cross motion

is overruled.

~ ee

3a

COSTS:

Motion Fee, $20.00, paid by John F. Holcomb, Roth-

man, Elliott, Boyd and Valen.

I, Thomas L. Startzman, Clerk of the Supreme Court of

Ohio, certify that the foregoing entry was correctly copied

from the Journal of this Court.

Witness my hand and the seal of the

Court this... dayof....... ..

|

4a

APPENDIX B

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

BUTLER COUNTY, OHIO

NO. CA77-07-0084

STATE OF OHIO,

Plaintiff-Appellee,

vs.

DONALD L. KORN,

Defendant-Appellant.

DECISION

(Filed April 4, 1979)

Mr. John F. Holcomb, Prosecuting Attorney, 310 Rentsch-

ler Building, Hamilton, Ohio 45011, for Plaintiff-Appellee,

Messrs. Walsh & Niehaus, James E. Walsh of counsel, 584

Nilles Road, Fairfield, Ohio 45014, and

Messrs. Elliott & Boyd, George H. Elliott of counsel, 1601

First Avenue, P. O. Box 1133, Middletown, Ohio 45042,

for Defendant-Appellant.

PER CURIAM.

This cause came on to be heard upon the appeal, the

transcript of the docket, journal entries and original papers

from the Court of Common Pleas of Butler County, Ohio,

the transcript of the proceedings, the assignments of error,

the briefs and the arguments of counsel.

5a

The defendant-appellant was indicted by the Butler

County Grand Jury for the aggravated murder of one Mil-

dred Ruth Doench on July 13, 1974. The indictment con-

tained a specification that the offense was perpetrated while

committing or attempting to commit rape contrary to R. C.

2929.04 (A) (7). Pleas of not guilty and not guilty by

reason of insanity were entered. After examination, the

defendant was found competent to stand trial. A motion

to suppress evidence of all statements and writings of the

defendant, and of property seized and tests made by police

authorities, was filed on behalf of the defendant and was

heard by a three judge tribunal. Following an extensive

hearing, the panel entered its findings of fact and conclu-

sions of law, and overruled the motion to suppress.

Thereafter, trial was had to the same panel, pursuant

to waiver of trial by jury, and the defendant was found

guilty as charged of aggravated murder while committing

or attempting to commit rape. Subsequently, a mitigation

hearing was had, after the tribunal overruled the defen-

dant’s motion attacking the constitutionality of the Ohio

Statutes providing for mitigation proceedings, and the de-

fendant was sentenced to death, no mitigating circum-

stances having been found. Appeal was timely filed pre-

senting four assignments of error for review.

Considering these assignments of error in an order re-

verse from that presented, we overrule the fourth assign-

ment of error which raises an issue as to the propriety of

evidence of a similar act following the act in question. We

conclude that this assignment of error is without merit.

State v. Snowden (1976), 49 Ohio App. 2d 7, 359 N.E.2d

87. The third assignment of error, attacking the constitu-

tionality of the Ohio death penalty under the statutes pro-

viding mitigation standards and procedures, is conceded

by the State to be meritorious in view of the holdings of

6a

Lockett v. Ohio (1978), ——- U.S. —, 98 S.Ct. 2954; Beli

v. Ohio (1978), —— U.S. —, 98 S. Ct. 2977; State v.

Collins, No. C-77614 (lst Dist. Mar. 7, 1979), and is

sustained. ‘The defendant’s motion was required to have

been granted, and the imposition of the death penalty was

error. ‘Ihe second assignment of error, raising asserted

error in the panel’s application of the mitigation statutes,

is mooted by our foregoing disposition of the third, and is

accordingly overruled.

This leaves for extended consideration the defendant’s

first assignment of error, which asserts that the trial court

erred in overruling the motion to suppress from the body

of evidence his confession and his other inculpatory writ-

ings and statements. Five grounds are asserted in support

of this assignment, one of which is, we conclude, disposi-

tive of the issue. Those facts relevant to the immediate

inquiry, derived from the hearing on the motion to sup-

press, are summarized in the following section.

I.

The defendant was arrested at 3:35 P.M. on January

27, 1975, by elements of the Jeffersonville, Indiana, police,

in connection with an assault with intent to commit a fel-

ony perpetrated in that state. He was promptly given

Miranda warnings in correct form, but did not volunteer

any responses. He was then transported to the Jeffersonville

jail and placed in custody. At 3:53 P.M., he was again

read his constitutional rights by the same officer, a Lieuten-

ant Kemp. Following this reading, Kemp testified for the

State as follows:

Q. And what did he indicate at that time?

A. He stated that no, he wanted to contact an at-

torney first.

—_——.

7a

Q. All right. Did you have any further conversation

with him that day, on January 27th?

A. No sir.

(T.p. 5)

On January 28, 1975, the defendant was arraigned on

the Indiana felony charge of assault and battery with in-

tent to commit a felony. He was there advised by the

magistrate that, “Once a formal charge is filed against you

either in this Court as a misdemeanor, or in the Circuit

Court . . . as a felony, you may ask the presiding Judge

to appoint the public defender to represent you.” (T.p.

125). No inquiry was made as to the defendant’s desire

for counsel or ability to employ counsel, and no effort

was made to furnish him with counsel.

On the following day, January 29, Lieutenant Kemp

visited the defendant to apprise him of yet another Indi-

ana warrant, again reminding him of his Miranda rights,

and was later that day advised by the defendant that he

wished to speak with members of his family and with a

Major John Bohlen, an officer of the Butler County, Ohio,

Sheriff's Department. Bohlen’s department had previous-

ly, on January 27th, been notified by the Indiana authori-

ties of the defendant’s arrest’ and Bohlen was present on

the 29th to interrogate the defendant. This initial cus-

todial interrogation by Bohlen, which was not preceded by

additional Miranda warnings, consisted of attempts to con-

vince Korn that his interests would best be served by

telling what he knew of the Doench killing. The inter-

rogation, which was recorded, included the following:

' The defendant had been questioned by the Ohio authorities at the

time of the Doench murder in 1974, but, no evidence connecting

him with the crime having developed, had not been arrested or

charged.

8a

Bohlen: And, of course, we still feel, and I told you

before, we stili feel that the only reason

you won't talk to us on the Doench matter

is because you have some knowledge of that

killing. I still feel that way. In the State

of Ohio, I don’t know if you’re aware of it

or not, but if you have a need for some

help, you can get it. And, for what its

worth, I just want to tell you that we'll do

everything we can to see to it that you get

it. But you’re going to have to level with

us. No other way anybody can do anything

for you unless you lay it out.

Korn: Well before I can go back over there I’ve

got to get through this down here. Just

gonna have to wait to see what happens

down here. And from what the lawyer that

Harold!! contacted down here, and my

mom and wife talked to yesterday, things

don’t look to good.

(T.p. 91-92)

Bohlen continued his questioning in an attempt to get the

defendant to talk about the Doench killing:

Bohlen: Why don’t you tell me the truth?

Korn: I have told you the truth.

Bohlen: Did you tell Indiana the truth?

Korn: Yes I did.

Bohlen: You didn’t have anything to do with that

either?

Korn: No, I did not. I haven’t talked to Indiana

on this girl yet down here that filed charges

until I do consult a lawyer.

2 That is, Harold Dance, a Middletown, Ohio, attorney, functioning

as a friend of the Korn family and intermediary in securing Indiana

counsel for Korn through the family.

9a

Bohlen: Yeah, that’s the same thing you told us up

there. ...

(T.p. 93-94)

Questioning continued without, however, any inculpa-

tory statements from the defendant, who was finally re-

moved from the interrogation room. The tape machine,

however, continued its operation, picking up the following

colloquy between Bohlen and someone unidentified:

Bohlen: God Damn! I believe I’ve about got him to

where he is going to talk.

Unidentified voice: [unable to decipher conversa-

tion.]

Bohlen: I sent him out. I told him, “I’m through

talking to you.” Son-of-a-bitch! I hope this

thing picked it up.

Unidentified voice: Did you shut it off?

Bohlen: No, I haven’t done anything to it. I don’t

want to screw it up.

Unidentified voice: It’s still going.

(end of tape recording ) (T.p. 95)

On the following day, January 30th, there occurred a

contretemps between the defendant’s family, whom he had

requested to see, the Indiana attorney hired by the family

to represent Korn, and the Jeffersonville police, in which

the attorney was first hired and then, under the impression

that they, the family, had been told by the police that

they would not be permitted to visit with Korn so long as

Korn was represented by counsel — an assertion vigorous-

ly denied by the police — fired from this employment.*

* This attorney, and another, were subsequently rehired to rep-

resent Korn, but after the confession was given on the 30th,

10a

Korn’s sister testified that during the defendant's confer-

ence with his family in the jail, at which Major Bohlen was

present, Korn was told that the family had to fire the In-

diana attorney in order to be permitted to see him, and

that Korn reiterated his need to be represented by counsel:

Q. What, if anything, was said with respect to a

lawyer for Donald?

A. Well I asked Donnie, I said, Don, we hired you

a lawyer but we had to let him go because they

wouldn’t let us see you. And he said, Sis, I know

we can’t afford a lawyer. And I said, Well you

need — you've got to have a lawyer. He said, Yes,

but we can’t afford it and I can’t afford one.

(T.p. 204)

It is not clear whether the conversation was within the

hearing of Major Bohlen, but Bohlen himself testified that

at the conclusion of this family conference, he and the

defendant had a conversation. This was after the defen-

dant’s family had discharged the attorney they had earlier

hired to represent Korn, in the belief, they testified, that

this was the only way they would be permitted to see

Korn. The following is Major Bohlen’s recollection of

his discussion with Korn:

Q. As far as you know, Korn didn’t know he had a

lawyer, is that right?

Not to my knowledge, no sir.

But you did.

Yes sir.

And when he asked you, “Do I need an attor-

ney?” you said, “Well, I’m from the State of

Ohio,” isn’t that right?

OF >

>

That was a decision I couldn’t make for him. —

lla

Q. No, no. Wait a minute. He already had one.

Don’t you think that was a little strange request

to make?

A. Apparently he didn’t know it.

Q. Then why didn’t you tell him?

A

I don’t think that was my place either.

(T.p. 104)

This conversation was overheard by Lieutenant Kemp who

confirmed the substance of it as related by Bohlen (T.p.

37-38) .

By now, the Indiana attorney initially hired by the

family to assist Korn had been discharged, and the family

had gone home. Questioning was then resumed by Bohlen,

Kemp, and two other officers in the late afternoon on the

30th, preceded by fresh Miranda warnings from a printed

form and a waiver thereof signed by Korn. This form,

unlike earlier verbal warnings administered by Lieuten-

ant Kemp, omitted an instruction that he had an immedi-

ate right to appointed counsel in the event he could not

engage one himself, and instead recited (after the usual

and proper preliminaries) :

You have this same right [i.e., to talk to a lawyer

before and during questioning] to the advice and

presence of a lawyer, even if you cannot afford to hire

one. We have no way of furnishing you a lawyer, but

one will be appointed for you, if you wish, if and

when you go to court.

(State’s Exhibits 5 & 6)

No verbal instructions were given to Korn then or there-

after which qualified this printed advice, or which indi-

cated that Korn then had the right to counsel and that the

12a

State was under an obligation then to furnish him one at

his request.

This session of questioning terminated without result

for the State. Two hours later, at approximately 8:30 P.M.,

Bohlen returned to the interrogation room after being

advised that Korn was ready to talk. A Miranda form

identical to the foregoing was produced and a waiver

signed by Korn. A full confession of the Doench murder

followed, together with a map drawn by the defendant

of the murder scene. After Bohlen finished with the de-

fendant, the Indiana police continued the session, di-

rected toward the charges in that state. When Korn had

completed his statements, at the end of the session, he

told the officers that we wanted an attorney.

Q. ... . Now after the end of your — the second

Statement he gave, the one he gave to you re-

specting the alleged offense in Indiana, he did at

that time state that he wanted a lawyer did he

not?

A. [by Lieutenant Kemp] At the end of that state-

ment, yes sir he did.

(T.p. 48)

Subsequently, the police authorities brought Korn, now ac-

companied by attorneys re-engaged by the family, to the

scene of the Ohio crime where, aided by the map, they

retraced the crime and secured other statements from the

defendant.

4 Because of our dispesition of the defendant’s first assignment of

error on other grounds, it is unnecessary to decide whether this in-

struction, which seems to qualify the Miranda warnings in a rather ma-

terial way, is insufficient in law to found a subsequently received con-

fession. But see U.S. ex rel. Williams v. Twomey (7th Cir. 1972), 467

F.2d 1248.

13a

II.

The defendant asserts, in the second argument advanced

in support of his first assignment of error, that:

Where an in custody defendant invoked his right to

counsel but was not provided a lawyer, his subsequent

uncounselled confession elicited by police-initiated in-

terrogation, is inadmissible and subject to suppression.

We conclude, after reviewing the evidence as summarized

above and the decisions following Miranda v. Arizona

(1966) , 384 U.S. 436, that we have no alternative but to

agree with this proposition.

Thus, in Miranda the Supreme Court had held:

Once warnings have been given, the subsequent

procedure is clear. If the individual indicates in any

manner, at any time prior to or during questioning,

that he wishes to remain silent, the interrogation must

cease. At this point he has shown that he intends

to exercise his Fifth Amendment privilege; any state-

ment taken after the person invokes his privilege can-

not be other than the product of compulsion, subtle

or otherwise. ... If the .adividual states that he

wants an attorney, the interrogation must cease until

an attorney is present. At that time, the individual

must have an opportunity to confer with the attorney

and to have him present during any subsequent ques-

tioning. If the individual cannot obtain an attorney

and indicates he wants one before speaking to police,

they must respect his decision to remain silent.

Miranda, supra at 473-74. This language from Miranda

was cited as controlling the disposition in the Court of

Appeals for the Sixth Circuit of a case with distinct parallels

to the instant appeal. In Combs v. Wingo (6th Cir. 1972),

465 F.2d 96, the suspect had been placed in custody

0 OO

l4a

and had been read his constitutional rights. The interro-

gating officer then testified:

“A. .... Then I asked him if he understood what

these rights were and asked him if he would like

to make a statement.

D16. Did he reply to you?

A. Yes. He said he would like to make a statement

but he would like to talk to an attorney first.”

Combs, supra at 97. Questioning nevertheless continued

with the officer reading to the defendant an incriminating

ballistics report.

A. Mr. Combs started to cry and he put his head in

his hands and he said those shoes that made the

tracks are at daddy’s, and I stopped him there —

OBJECTION: MR. HUGHES:

THECOURT: OVERRULED.

A. And I stepped to the door and called Sergeant

Gay and Sergeant Gay came in and kinda hunk-

ered down beside the desk, and I said do I un-

derstand you now want to make a statement with-

out an attorney and he said that is right. He was

again advised that he didn’t have to make a state-

ment and he said I want to talk about this and

I asked him are you saying you had something

to do with Effie Haden’s death? And he said yes,

ee

Combs, supra at 98. The Sixth Circuit Court of Appeals

reversed the dismissal by the District Court of a petition

for a writ of habeas corpus, and remanded with instruc-

tions to issue the writ “unless appellant is retried by the

Commonwealth within a reasonable time without the in-

troduction of any evidence of the unconstitutionally ob-

15a

tained confession or any evidence obtained therefrom.”

Combs, supra at 99.

Again, in Brooks v. Perini (N.D. Ohio 1973), 384 F.

Supp. 1011, aff'd 497 F.2d 923 (6th Cir.), cert. den. 419

U.S. 998, the U.S. District Court for the Northern Dis-

trict of Ohio, Western Division, confronted a situation

where the accused, during a custodial interrogation after

receiving advice as to his constitutional rights, indicated

his desire for the presence of an attorney. None being

then available, questioning continued with inculpatory

statements ultimately resulting. Entering an order for the

conditional issuance of a writ of habeas corpus, the court

stated:

The record clearly shows that the petitioner requested

the presence of an attorney, that he was not provided

an attorney and that the interrogation continued after

petitioner’s request. The trial judge at the suppres-

sion hearing found that petitioner waived his right to

counsel subsequent to his request by agreeing to con-

tinue with the questioning after being fully informed

ot his constitutional rights. The respondent advances

that same argument in this action. If their conclusions

are accepted, the constitutional protection promised by

Miranda would indeed be illusory. Merely by continu-

ing to seek a waiver of rights after a request by an

accused for the presence of an attorney would be a

most effective method of circumventing the guarantees

of Miranda.

Brooks, supra at 1018. Commenting on the respondent’s

argument that the police did not “pressure” the accused

during the interval of time they went in search of an at-

torney, the court noted:

The “pressure” here came from the continued re-

quests of the police and prosecutor that petitioner

proceed with the statement without a lawyer. The

l6a

requests took the form of continued advisement of

Miranda rights, seeking a waiver of those rights by pe-

titioner. The plain language of Miranda and Combs

prohibits this pressure after an accused has requested

the presence of an attorney during interrogation.

Brooks, supra at 1018. ‘To similar effect, see U.S. ex rel.

Williams v. Twomey (7th Cir. 1972), 467 F.2d: 1248;

U.S. v. Slaughter (4th Cir. 1966), 366 F.2d 833; U-S. v.

Fisher (D.C. Minn. 1971), 329 F. Supp. 630; State v.

Word (1969) , 80 N.M. 377, 456 P.2d 210.

There is even the suggestion by the United States Su-

preme Court that, unlike the expression of a desire to

remain silent, which Miranda does not require to be of

indefinite duration, the desire to have the assistance of

counsel may, once expressed, indefinitely preclude all fur-

ther interrogation until counsel is finished. Mr. Justice

White, in his concurring opinion in Michigan v. Mosley

(1975), 423 U.S. 96, 109-110, stated:

As the majority points out, the statement in Miranda,

. . . at 474, requiring interrogation to cease after an

assertion of the “right to silence” tells us nothing

because it does not indicate how soon this interroga-

tion may resume. The Court showed in the next para-

graph, moreover, that when it wanted to create a per se

rule against further interrogation after assertion of a

right, it knew how to do so. The Court there said

“{iJf the individual states that he wants an attorney,

the interrogation must cease until an attorney is pres-

ent.” [Emphasis in original.]

In footnote 2 of his concurring opinion, Justice White

comments:

The question of the proper procedure following ex-

pression by an individual of his desire to consult coun-

sel is not presented in this case. It is sufficient to

note that the reasons to keep the lines of communica-

17a

tion between the authorities and the accused open

when the accused has chosen to make his own de-

cisions are not present when he indicates instead

that he wishes legal advice with respect thereto. The

authorities may then communicate with him through

an attorney. More to the point, the accused having ex-

pressed his own view that he is not competent to deal

with the authorities without legal advice, a later de-

cision at the authorities’ insistence to make a state-

ment without counsel’s presence may properly be

viewed with skepticism.

Applying these authorities to the instant appeal, it is

clear, as a result of the testimony of the State’s own wit-

nesses, that the defendant at least twice and possibly as

many as four times manifested his desire to be assisted

by counsel. The first occasion followed Lieutenant Kemp’s

initial Miranda instructions on January 27. At that time,

the defendant expressly indicated that he did not want to

answer questions, that “he wanted to contact an attorney

first.” The second occasion, two days later following ar-

raignment, was during an interrogation by Major Bohlen.

The interrogator was attempting to secure a statement on

the Ohio homicide, but Korn was concerned with the In-

diana proceedings, and with the fact that the lawyers his

family had contacted indicated that “things don’t look too

good.”” His concern with legal counselling was confirmed

a moment later when he responded to a question about

his answers to authorities on the Indiana offense by say-

ing “. . . I havn’t talked to Indiana on this girl down

here filing charges until I do consult a lawyer.” His in-

terrogator acknowledged his familiarity with Korn’s desire

to have an attorney, stating, “Yeah, that’s the same thing

you told us up there. . . .”

After being informed by his sister the next day that

the lawyer his family had earlier hired to represent him,

| 3 |

18a

had been fired,5 Korn reaffirmed to his sister his need for

a lawyer and his fear that he could not afford one. He

asked Major Bohlen, following his conference with his

family, whether he needed an attorney, but Bohlen de-

clined to advise him. Questioning resumed, ultimately with

the result sought by the police, and concluding with a re-

iteration of his desire for the assistance of counsel:

We think it is clear from this record that the defendant

had indicated in as positive and unequivocal a fashion as

one under these circumstances could reasonably be ex-

pected to do, that he did not wish to respond to question-

ing until he was represented by counsel. The conclusions

of law filed by the trial panel, reaching a contrary result,

reveal to us either a misreading of the evidence, or a mis-

understanding of the law, or both. Thus, the panel found:

3. The Court finds further that once Defendant indi-

cated that he desired to obtain counsel, interro-

gation ceased.

4. ‘The Court finds further the at no time during the

interrogation which resulted in the statements in

question, did Defendant indicate his desire for

counsel.

(T.d. 65)

The first of these conclusions is consistent with the un-

disputed evidence only if one argues that because interro-

gation ceased on January 27th after the first mention of

the desire for counsel, that it could be fully resumed on

5 The defendant vigorously argues that the police induced the at-

torney’s discharge by telling the family that they could not visit Korn

so long as he was represented by counsel. The police insist that what

they said was misunderstood, that they said that they (the police )

could not see him if he had an attorney. The trial panel found the

latter to be the fact. Our disposition of the case on another ground

moots our consideration of this issue, and its possible consequence on

the motion to suppress.

19a

any day thereafter. But, as was stated in U.S. v. Slaughter

(4th Cir. 1966) , 366 F.2d 833, 840-841:

The fiat of the rule that we should announce in

this case is subject to some qualification. The right

to counsel, like most other constitutional rights, may

be waived. But, as pointed out in . . . [citations

omitted], waiver is an intentional relinquishment or

abandonment of a known right or privilege. We

find no waiver of the right to counsel. Here, ap-

pellant manifested his desire to exercise his right to

counsel. For reasons of conscience or otherwise, he did

not initiate additional conversation with agents of the

F.B.I. about the matter with which he was charged,

or the homicide they were investigating. His interro-

gation was initiated solely by the F.B.I. . . . Even if

we disbelieve appellant’s assigned reason why he there-

after permitted himself to be interrogated, there is

nothing in this record to support an express change

of mind on appellant’s part of his desire to consult

counsel, and a departure from his previously an-

nounced desire to exercise his right should not be

lightly inferred. A statement that appellant had a

right to remain silent, on the facts here, was insuf-

ficient to overcome the respect to which his expressed

desire to consult was entitled.

As in Slaughter, we have examined this record in a fruitless

search for anything which would indicate any demonstrable

or even arguable change of mind on Korn’s part of his

desire, expressed on the 27th and 29th, to consult coun-

sel. On the contrary, what we have found seems only to

reinforce this desire.

The second of the panel’s conclusions of law seems to

attach significance to the absence of yet another expression

of Korn’s desire for counsel immediately preceding the

second interrogation on the 30th, which resulted in the

confession. We find no such significance. We do not read

Miranda as requiring, once the privilege is claimed, the

20a

defendant to endlessly repeat his request at endless inter-

rogations. It is not necessary to adopt the per se rule sug-

gested by Justice White in Mosley, supra, to find that, un-

der the facts presented here, nothing occurred prior to

the second period of questioning on January 30th which

extinguished or vitiated the defendant’s assertion of his de-

sire for the presence of counsel, ard the obligation ot the

authorities to respect it.

We conclude that the confession of guilt by Korn on

January 30th should have been suppressed since it followed .

custodial interrogations held in disregard of his election

to have the assistance of counsel, and that the trial panel

erred in failing to so suppress the confession together with

the map of the Doench premises and any other inculpa-

tory material following the confession and which consti-

tuted the tainted fruit thereof. Wong Sun v. U.S. (1963),

371 U.S. 471; Harrison v. U.S. (1968), 392 U.S. 219;

U.S. v. Bayer (1947) , 331 U.S. 532.

We may be forgiven for noting that, in the instant case,

we have no particular appetite for the result these man-

dates of law require of us. The crime involved here was

particularly repellant and vicious; every decent individual

recoils at a recitation of facts involved in this case. One’s

sympathy is not enlisted in considering the defendant's case.

But these are considerations we do not have the luxury

of indulging. The law has established certain procedures

which must be followed in cases of custodial interrogation,

and has established penalties for transgression of the pro-

cedures. We sit here to apply that law, not to indulge

our preferences.

The defendant’s first assignment of error is sustained,

the judgment is reversed, and the cause is remanded for

further proceedings consistent with this decision.

PALMER, P. J., BETTMAN and BLACK, J. J.

2la

COURT OF APPEALS

FIRST APPELLATE DISTRICT

‘BUTLER COUNTY, OHIO

NO. CA77-07-0084

STATE OF OHIO,

Appellee,

vs.

DONALD L. KORN,

Appellant.

JUDGMENT ENTRY

Entered ——————

/s/ KEEFE, Presiding Judge

This cause came on to be heard upon the appeal on

questions of law, assignments of error, the record from the

Court of Common Pleas of Butler County Ohio, the briefs

and the arguments of counsel.

Upon consideration thereof, the Court finds that the

assignments of error are well taken in part for the reasons

set forth in the Decision filed herein and made a part

hereof.

It is, therefore, Ordered by the Court that the judg-

ment of the Court of Common Pleas of Butler County,

Ohio, be, and the same hereby is, reversed and remanded

for further proceedings consistent with this decision.

It is further Ordered that a mandate be sent to the

Court of Common Pleas of Butler County, Ohio, for exe-

cution upon this judgment.

22a

Costs to be taxed in compliance with Rule 24, Appel-

late Rules.

And the Court being of the opinion that there were

reasonable grounds for this appeal, allows no penalty.

It is further Ordered that a certified copy of this Judg-

ment, with a copy of the Decision attached, shall consti-

tute the mandate pursuant to Rule 27, Ohio Rules of

Appellate Procedure.

To all of which the appellee, by its counsel, excepts.

23a

APPENDIX C

STATE OF OHIO, BUTLER COUNTY

COURT OF COMMON PLEAS

CASE NO. CR76-06-0306

STATE OF OHIO,

Plaintiff,

vs.

DONALD L. KORN,

Defendant.

FINDINGS OF FACT and CONCLUSION OF LAW

(Filed May 4, 1977)

Cramer, Marrs, Riley — J.

Mrs. Ruth Doench was murdered in Butler County,

Ohio on July 13, 1974.

Defendant Donald L. Korn was indicated by the Butler

County Grand Jury, May Term, 1976, for Aggravated

Murder with specification for the murder of Ruth Doench.

On September 29, 1976, Defendant entered pleas of

not guilty and not guilty by reason of insanity to the in-

dictment and on October 13, 1976, Defendant filed a

motion to suppress evidence which motion was amended

March 14, 1977 and the matter is now before the court

upon the motion to suppress as amended.

The court having heard the evidence the arguments of

counsel and has considered the briefs of counsel and comes

now to its findings.

24a

FINDINGS OF FACT

1. The Defendant was arrested by Indiana authorities

on January 27, 1975 and incident to the arrest was fully ad-

vised of his Miranda Rights at 3:35 p.m. on that date.

2. At 3:53, on the same date, the Defendant was again

fully advised of his Miranda Rights, as a part of the book-

ing process in Indiana.

3. At that time Defendant acknowledged the warn-

ings and his understanding of these warnings.

4. He indicated he did not wish to talk to anyone. and

no one talked to him that day.

5. Defendant advised his wife by phone that day of

his arrest.

6. On January 28, 1975, at 9 a.m. Defendant was taken

before Judge Jacobs for preliminary arraignment, and was

further advised by Judge Jacobs of his Constitutional

rights.

7. On January 29, 1975, Captain Kemp again advised

him of his rights under the Miranda rulings and talked

with defendant at his request.

8. On January 30, 1975, Defendant’s family came to

Indiana to visit him and retained counsel, one Forrest

Lanning, to represent Defendant.

9. Subsequently, Lanning was discharged by the family,

under the impression they say that they could not talk

with Defendant while he had counsel, although it is dis-

puted by police officers that they were ever told this.

10. At 6:25 p.m., January 30, 1975, Maj. Bohlen, a

Butler County, Ohio Deputy, in the presence of other of-

ficers again warned Defendant of his rights from a printed

police department form. In part, these warnings were:

“You have the same right to advice and presence of a

25a

lawyer, even if you cannot afford to hire one.”’ Defendant

indicated that he understood his rights.

11. Defendant then made an oral statement followed

by a later recorded statement taken only after an additional

warning of Miranda rights.

12. On February 1, 1975 the Defendant's sister again

employed Mr. Lanning to represent the Defendant.

13. On February 2, 1975, Defendant in the company

of his counsel, voluntarily returned to Ohio with Ohio

police officers and viewed several scenes allegedly involved

in the Doench murder.

CONCLUSIONS OF LAW

The Court comes now to its conclusions of law based

on the facts as previously set forth herein:

1. The Court finds that the Defendant was fully ad-

vised of his Constitutional rights and further that he vol-

untarily knowingly, and intelligently waived his right to

counsel.

2. The Court further finds from the facts set forth

that no coercion was employed by the police officers in

obtaining the statements sought to be suppressed by this

amended motion, nor was he prevented from conferring

with counsel.

3. The Court finds further that once Defendant indi-

cated that he desired to obtain counsel, interrogation

ceased.

4. The Court finds further that at no time during the

interrogation which resulted in the statements in question,

did Defendant indicate his desire for counsel.

Having fully set forth its findings of fact and conclusions

of law upon the motion the Court, in accordance with

26a

these findings, rules that the motion is not well taken

and is therefore overruled.

The rulings of the Court are unanimous.

An entry may be prepared in accordance with these

findings and conclusions.

Enter this —— day of May, 1977.

/s/ ROBERT L. MARRS,

Judge Presiding

/s/ FRED B. CRAMER,

Judge

/s/ PAUL E. RILEY,

Judge

IN THE COURT OF COMMON PLEAS

STATE OF OHIO, BUTLER COUNTY

CASE NO. CR76-06-0306

STATE OF OHIO

Plaintiff

Vs.

DONALD L. KORN

Defendant

ENTRY

(Filed February 13, 1979)

This cause came on to be heard before this court, com-

" oe

“ Se "

27a

posed of three judges as provided in Section 2945.06 of

the Ohio Revised Code, upon the Defendant’s motion to

suppress, as amended, filed herein, and the court, having

considered the evidence adduced herein, the arguments, and

’ memoranda of counsel, and the law, does hereby unani-

mously find that said motion is ~ well taker

IT IS THEREFORE ORDERED, ADJUL *° +» AND

DECREED that the defendant’s motion to suppress as

amended be and is hereby overruled.

ENTER

/s/ ROBERT L. MARRS

JUDGE

/s/ FRED B. CRAMER

JUDGE

/s/ PAUL E. RILEY

JUDGE

NUNC PRO TUNC: May 4, 1977

APPROVED AS TO FORM:

/s/ JOHN F. HOLCOMB

PROSECUTING ATTORNEY

BUTLER COUNTY, OHIO

28a

APPENDIX D

Donald Lee KORN, Appellant,

v.

STATE of Indiana, Appellee.

No. 8768273.

Supreme Court of Indiana.

Aug. 14, 1978.

Michael J. McDaniel, New Albany, for appellant.

Theo. L. Sendak, Atty. Gen., Daniel Lee Pflum, Deputy

Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Following a jury trial in the Clark Circuit Court on

April 21, 1976, appellant Korn was convicted of inflicting

injury in the commission of a robbery, commission of a

crime while armed, to-wit, rape, and commission of a

crime while armed, to-wit, robbery. For these crimes,

Korn was sentenced to life, thirty years, and twenty years

imprisonment, respectively.

The incident in question occurred on January 24, 1975.

On this date, the appellant broke into the home of a

woman, D.H., and slashed her throat five times. He then

ordered her into a utility room where he raped her twice

and forced her to commit sodomy. Korn then fled the

29a

home taking the victim’s purse containing fifteen dollars.

The victim later identified Korn as her assailant at a

police line-up and at trial. Also, Korn gave the police a

statement in which he admitted committing the acts in

question.

This appeal presents four issues for our review. These

issues concern: (1) the validity of the charging informa-

tion; (2) the admission into evidence of appellant’s con-

fession; (3) the admission into evidence of the victim’s

purse which was located as a result of Korn’s confession,

and; (4) the trial court’s denial of appellant’s Motions

for Directed Verdict made at the end of the state’s case-in-

chief and at the close of all evidence.

I.

As his first assignment of error, the appellant claims

that the trial court was without jurisdiction over this case

because the charging information was not signed by the

prosecutor in compliance with Ind.Code § 35-3.1-1-2 (b)

(Burns 1975). The relevant portion of this statute re-

quires that:

“The information shall be signed by the prosecuting

attorney or his deputy and sworn to by him or by any

other person.”

The copy of the information contained in the record

bears two signatures by the deputy prosecutor. The first

signature was made in attestation to the oath of the affiant,

Ronald Kemp. The second signature, follows the phrase

‘Approved by me.” As the signatural requirements of the

statute were complied with, there is no error presented in

this issue.

30a

II.

The appellant next argues that the trial court erred in

denying his Motion to Suppress a statement he gave to

police. Korn claims that the confession was not freely,

knowingly, and voluntarily given, and that it was obtained

by police unlawfully.

The relevant facts surrounding the giving of the state-

ment are as follows. Korn was taken into custody on the

afternoon of January 27, 1975, pursuant to a preliminary

charge of assault and battery with intent to commit a

felony on one K.A. The next day Korn was taken before

the Jeffersonville City Court in relation to the preliminary

charge. City court judge, George Jacob, advised Korn of

his constitutional rights including the right to an attorney.

Judge Jacob further advised appellant that once formal

charges were filed, either in the circuit court as a felony

or in the city court as a misdemeanor, he could request

that the presiding judge appoint the public defender to

represent him if he could not afford a private attorney.

On the evening of January 29, 1975, the appellant was

arrested in his jail cell pursuant to a bench warrant issued

by the Clark Circuit Court for the rape, robbery and in-

jury inflicted upon D.H., the victim in the present case.

Korn was allowed to call his family that night and request-

ed their presence at the jail. He also asked to see Larry

White, an old family friend and retired police officer.

Larry White and Korn’s wife, mother and sister left

their Ohio homes the morning of January 30, 1975, arriv-

ing in Jeffersonville at around 11:30 a. .m Before going

to the jail, the family retained a local attorney who said

he would meet them at the police station. The family

then proceeded to the jail where they met with Detective

Ron Kemp and Major Bohlen, an Ohio policeman, at

3la

approximately noon. At this point the testimony conflicts.

The family and Mr. White claimed that the police told

them that they could not see Korn since they had hired

a lawyer. The officers stated that what they actually told

the family was that the police, not the family, would

be unable to speak with Korn after an attorney was re-

tained. The officers further testified that the family and

White did, in fact, meet with the appellant from approxi-

mately 12:30 p. m. to 2:00 p. m. Following this meeting,

the family went out for lunch after unsuccessfully trying

to locate the attorney. Upon his arrival at the jail at 4:00

p- m., the attorney was notified of his discharge. The

attorney counselled the family for fifteen minutes then

left. The family and Mr. White then met with Korn

before returning to Ohio at about 5:30 p. m.

After finishing dinner, Korn executed a written advice

and waiver of rights form. At approximately 8:00 p. m.,

the appellant told Detective Kemp that he recalled what

he had done in Ohio and in Jeffersonville. The appellant

became very emotional at that point. Detective Kemp left

the room to get Korn a cup of coffee and related the ap-

pellant’s remarks to Major Bohlen, an Ohio police officer.

Major Bohlen then entered the room and advised appel-

lant of his rights. Korn signed a written waiver form and

proceeded to give Bohlen a statement concerning his in-

volvement in an Ohio homicide. This statement was con-

cluded at approximately 9:30 p. m. Detective Kemp re-

turned to the room and Korn was again advised of his

rights. The appellant executed a third waiver of rights

form and made the confession which is at issue in this

appeal.

The appellant admits that he was fully advised of his

rights. He could hardly contend otherwise in light of

the fact that in addition to the three written waivers he

32a

signed, he was also advised of his rights at the time of his

initial arrest, at the subsequent booking, at the preliminary

hearing, upon his arrest for the offenses against D.H. and

by Detective Kemp when Kemp visited Korn’s cell on the

night of January 29. Rather, the essence of Korn’s argu-

ment is that his confession was involuntary because: his

will to resist questioning deteriorated due to the lapse

of time between his initial arrest and the giving of the con-

fession, and; because his right to counsel was frustrated

by the actions of the police officers.

This court has held in several decisions that a delay

in presenting a defendant before a magistrate does not -

make a confession inadmissible as a matter of law, but

rather is one factor to be considered in the question of

admissibility. Murphy v. State, (1977) Ind., 369 N.E.2d

411, 415; Sanders v. State (1972) 259 Ind. 43, 284 N.E.2d

751; Green v. State, (1971) 257 Ind. 244, 274 N.E.2d

267. In the present case, the period of delay extended

from the time of appellant’s arrest in his jail cell on Janu-

ary 29, until his confession the following night; a period

of approximately twenty-four hours. Although appellant

was initially arrested on January 27, he was promptly

brought before a judge on the preliminary charges the next

day. Thus, only the period of detention following ap-

pellant’s second arrest can arguably be deemed unlawful.

The Appellant relies upon Williams v. State, (1976) Ind.,

348 N.E.2d 623, in support of his position that the trial

court should not have admitted his confession into evi-

dence. In Williams, this court suppressed a confession

which was found to be the result of an illegal detention

of sixty-eight hours. However, Williams involved several

factors which are not present in this case: an arrest with-

out either a warrant or probable cause, deficient Miranda

warnings and the absence of any circumstances interven-

Sip Mees

——

33a

ing between the arrest and the confession which would

have shown the statement to be a product of defendant’s

free will. In this case, Korn does not challenge the legality

of his arrest or the sufficiency of the Miranda warnings he

received. There is no evidenced presented, beyond appel-

lant’s bare assertion, that the length of detention caused

Korn’s will to resist questioning to deteriorate. On the other

hand, there is much evidence showing his willingness to

talk and cooperate with police and do so in the absence of

an attorney. Thus, the length of detention in this case

does not make appellant’s confession inadmissible.

With respect to the appellant’s argument that he was

denied his right to counsel, there is no question that a

defendant can waive his right to have an attorney present

when making a statement, just as he can waive any other

right. Murphy v. State, supra. However, where the as-

sistance of counsel is waived and a statement is taken, a

heavy burden rests on the state to show that such waiver

was knowing and intelligent. Miranda v. Arizona, (1966)

384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694,

724. Significantly, the record in this case shows that at no

time did Korn ever state that he wanted an attorney de-

spite the fact that he was informed of his right to counsel

on at least eight separate occasions. To the contrary, Korn

stated that he was leaving all decisions up to his family

and was going on the advice of Mr. White. Mr. White

had advised Korn to talk with police and that he, Korn,

might not need a lawyer. Although Judge Jacob arguably

should have made inquiry into appellant’s indigency at the

preliminary hearing, Fulks v. State, (1970) 255 Ind. 81,

85, 262 N.E.2d 651, 653, such error was harmless since

Korn was not, in fact, an indigent. Finally, the fact that

appellant did not wish to have counsel prior to questioning

is reinforced by the content of a three-way telephone con-

34a

versation he had with his wife, Dorothy, and his mother,

Calla Mae Bayne, immediately following the confession.

This conversation was taped by police and, in relevant part,

was as follows:

Dorothy: Okay, your mom is on the other phone.

Korn: Okay, well like I said, I’ve made a complete

confession.

Calla Mae Bayne: You what honey?

Korn: I -aade a complete confession. After talking

with this Lieutenant here for about two hours. . .

It all came back, I know what I did . . . I did do

it. . . But I know what I’m doing, I think. There’s

been no threats, no nothing . . . I tell you what,

I feel like hell, but I feel a hundred percent better

now

Calla Mae Bayne: It’s the best thing you could have

ever done then.

Korn: I think it is too.

Calla Mae Bayne: Donnie are you glad, still glad we

didn’t get an attorney to fight it?

Korn: Yes, I am.”

We find that this evidence, when viewed as a whole, was

sufficient to establish a knowing and voluntary waiver by

appellant of his right to counsel before questioning.

Thus, there was no error in admitting the appellant’s

confession into evidence.

Il.

The appellant next contends that the trial court erred

in admitting into evidence the purse belonging to the

victim which appellant took from her home. Korn claims

that since the purse was located as a result of his confession,

it should have been excluded from evidence as the fruit

35a

of an unlawfully procured statement. In light of our hold-

ing in issue II, supra, that the confession was not un-

lawfully obtained, appellant’s contention is without merit.

There was no error in admitting the purse into evidence.

IV.

The appellant’s final argument concerns the trial court’s

denial of his Motions for Directed Verdict at the close of

the state’s case-in-chief and at the close of all evidence.

The appellant proceeded to present evidence in defense

following his first motion, and thus any error in the court’s

ruling on such motion is waived. Downs v. State, (1977)

Ind., 369 N.E.2d 1079, 1081. Appellant’s sole claim with

regard to the denial of his Motion for Directed Verdict

is that the state failed to prove that the injuries inflicted

upon the victim were committed in the furtherance of a

robbery. Appellant’s argument is essentially an invitation

for this court to reweigh the evidence. This, we will not

do. Rather, we look at only the evidence most favorable to

the state and the reasonable inferences to be drawn there-

from. A verdict will not be disturbed if there is substan-

tial evidence of probative value from which the trier of

fact could reasonably infer that ine defendant was guilty

beyond a reasonable doubt. Mosley v. State, (1977) Ind.,

366 N.E.2d 648, 649. The evidence showed that Korn

broke into the home of the victim where he slashed her

throat five times. After twice raping the victim and forcing

her to commit sodomy, the appellant fled from the home

with her purse containing fifteen dollars. We find that

this evidence satisfied our standard for reviewing suf-

ficiency questions.

36a

APPENDIX E

STATE'S EXHIBIT 20

STATEMENT

30th day of January, 1975

8:40 (PM)

I Donald L. Korn give the following voluntary statement

to Lt. Ron Kemp who has identified himself as a Police

Officer of the Jeffersonville Police Department, Jefferson-

ville, Indiana.

I have been advised that no statement is required and

if so given, it can be used against me in court. I have been

advised of my right to consult an attorney prior to making

a statement by Maj. J. Bohlen, Butler County, Ohio Sher-

iff’s.

No threats or promised have been used in obtaining

this statement.

Present in addition to the officer named above are Sgt.

Jack Whittingil of the Jeffersonville, Indiana Police De-

partment, and Detective Larry Castator of the Butler Coun-

ty, Ohio Sheriff's Department.

Your Name is Donald L. Korn: Right,

Q. Where do you live? Ans. 801 Vinnedge Avenue,

Fairfield, Ohio.

Q. You are in the Office of Detective Lt. Ron Kemp

of the Jeffersonville Police Department? Ans. That's

Correct.

There are no guns present? Ans. None at all

You're not under any duress? Ans. None at all

Of

LLL

Oo

37a

No threats have been made against your Ans. No

You're here voluntarily? Ans. That's correct

You’re not under the influence of any narcotic drug,

any hallucinogen, or the influence of alcohol? Ans.

None whatsoever

Now before we begin, Let me read you your rights as

they pertain to this questioning, you understand that

this is Detective Larry Castator of the Butler County

Sheriff's Office, (Yes) I am John Bohlen, also of the

Butler County Sheriff's Office, This is Detective Lt.

Ron Kemp, of the Jeffersonville, Indiana Police De-

partment? (Yes)

All Police Officers,

You understand that you have a right to remain silent,

you need not talk with us at all, you have, you under-

stand that anything you do say, should you choose to

make a statement can and will be used against you

in a court of law?, you understand that you have the

right to talk to a lawyer for advice before we ask you

any questions, and to have an attorney present with

you here during the questioning, you understand

that you have a right to end the questioning at any

time you so desire, and should you decide to answer

the questions now, and later decide you want a lawyer

present; you have a right to stop and ask for the at-

torney, you have a right to call off the questioning at

any time; Do you understand those rights? ans. Yes

You have read them, and you understand them? Ans.

Yes.

OK, If you'll sign indicating you have read the state-

ment, and understand them (Korn signs statement,

see attached)

Now there is a waiver underneath there that says,

I have read this statement of my rights and I under-

38a

stand what my rights are, I am willing to make a

statement and answer questions, I do not want a

lawyer. I understand, and know what I’m doing, no

promises or threats have been made to me; and no

pressure or coercion of any kind has been used against

me. Do you understand that? Ans. Yes

Q. Will you sign that waiver then? (Korn signs waiver,

see attached)

Q. OK, Mr. Korn, now having acknowledged your rights

and having waived and having decided to make a

statement to us, we would like to have you tell us

everything you can recall as best you can recall it,

of the n‘ght of July 13, 1974.

Ans. ‘That afternoon, approximately 1:00 O’Clock I left

my house, I went * * *

JPD Form Legal Statement Page 1 of 7 pages.

/s/ Det. LARRY A. CASTATOR

I have been advised by Maj. J. H. Bohlen BCSO that

in the event this case goes to court and I do not have

money to hire an attorney, the Judge will appoint an

attorney for me.

I understand that at the time I committed the above

acts, I violated the law. I have read the above statement

and have had it read to me and it is true and correct.

/s/ D. L. KORN

Signature

ae ee