Petition — Marshall v. Clark

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CASE NO. NOV 19 ae

‘ners L. 6TEVAS

IN THE

Supreme Court of the United State

OCTOBER TERM, 1982

¢ “

R. C. MARSHALL, Superintendent

Southern Ohio Correctional Facility,

Petitioner,

JIMMY LEE CLARK,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

WILLIAM J. BROWN

Attorney General of Ohio

RICHARD DAVID DRAKE

Counsel of Record

Assistant Attorney Genera/

State Office Tower

30 East Broad Street, 26th Floor

Columbus, Ohio 43215

(614) 466-5414

ATTORNEYS FOR

PETITIONER

QUESTIONS PRESENTED

WHETHER 28 U.S.C. SECTION 2254(d) MAN—

DATES THAT A FEDERAL COURT REVIEW—

ING A STATE PRISONER’S HABEAS CORPUS

PETITION AFFORD DEFERENCE TO FAC-—

TUAL DETERMINATIONS MADE BY THE

STATE JUDICIARY WHERE REFERENCE TO

THE TOTALITY OF THE STATE COURT

RECORD DEMONSTRATES THAT THE STATE

COURTS APPLIED THE CORRECT CONSTI-—

TUTIONAL STANDARD IN ARRIVING AT

SUCH FACTUAL DETERMINATIONS.

WHETHER AN ERRONEOUS JURY INSTRUC—

TION REGARDING AN ELEMENT OF A

CRIMINAL OFFENSE CAN EVER BE CON—

SIDERED HARMLESS ERROR WHEN

FURTHER INSTRUCTIONS TO THE JURY

ARE CURATIVE OF THE ERROR.

PARTIES

The petitioner in this action is R. C. Marshall in his

capacity as Superintendent of the Southern Ohio Correc-

tional Facility at Lucasville, Ohio. The respondent is

Jimmy Lee Clark.

TABLE OF CONTENTS

Page

«+6 ooo ceeneceeesseeee i

ee lel 6 ee ee ee hens bh ebE Uae OES REN ii

le ee ee ee ee ak eae 1

ee re ees bone eee ES 1

CONSTITUTIONAL AND STATUTORY

PED CUUEDEL WEEE. co cccccceccoccceves 2

Ee 6

ARGUMENT IN SUPPORT OF

GRANTING CERTIORARI

er err rr re 11

hi... 5 o6 cus cuees so cans enenued 19

CERTIFICATE OF SERVICE. .. 1... cccccccccccces 25

TABLE TO AUTHORITIES

Cases:

Anderson v. Harless,

U.S. , 32 Cr. L. 4063

TTT ee ee ces eaee be wee 12

Clark v. Ohio,

rs «cose oo Gneee senueenes 10

Cupp v. Naughten,

ED no gs va be cede eu cueneh eu 23

Edwards v. Arizona,

a i de ee een be 17

Fowler v. Jago,

683 F. 2d 983 (6th Cir. 1982)................ 12

Johnson v. Zerbst,

Dn. +. oss neceseeseseoes 17, 18

La Vallee v. Delle Rose,

ee EE SUE c oc cccccocccosees 11, 12, 17

TABLE TO AUTHORITIES, cont‘d.

Page

Lonberger v. Jago,

651 F. 2d 447 (6th Cir. 1981), cert. granted

sub nom., Marshall v. Lonberger, U.S.

71 L. Ed 2d 292 (January 11, 1982)..... 12

Michigan v. Mosley,

EL, 0 a su’ g's 60% 0465 OS OEE 17

Miranda v. Arizona,

iL. «<b 666 660 e's.8 eee enmen 17

Sandstrom v. Montana,

PEP TT ee 20, 24

State v. Clark,

55 Ohio St. 2d 257 (1979) ............... 10, 20

State v. Lockett,

SP GEE SUUIDEED 5 voce cscésecdcesees 20

State v. Scott,

Be a, Ge SUP GUED oc ccc cccceccececes 20

Sumner v. Mata,

449 U.S. 539 (1981), opinion after remand,

649 F. 2d 713 (9th Cir. 1981), vacated,

U.S. __, 71: L. Ed 2d 480 (March

f pre err errr 11,17

Townsend v. Sain,

PE Es CUED 6 coc eee ceeeeeceses 12, 16

Statues:

28 U.S.C. Section 2254(d) .............. 3, 11,12, 17

Ohio Revised Code Section 2903.01.............. 6,7

Ohio Revised Code Section 2903.02................ 7

Ohio Revised Code Section 2903.11................ 7

Ohio Revised Code Section 2911.01.............. 6,7

Ohio Revised Code Section 2929.04................ 6

DECISIONS BELOW

The decision of the United States Court of Appeals

for the Sixth Circuit is reported as Clark v. Jago, 676 F.

2d 1099 (6th Cir. 1982) (A - 1). The decision of the

United States District Court for the Northern District

of Ohio, Eastern Division, is unreported. (A - 34). The

decision of the Supreme Court of Ohio is reported as

State v. Clark, 55 Ohio St. 2d 257 (1978) (A - 46). The

decision of the Ohio Court of Appeals for the Eleventh

Judicial District is unreported. (A - 50).

JURISDICTION

The decision of the United States Court of Appeals

was entered on April 23, 1982 (A - 1) and rehearing en

banc was denied on September 13, 1982. (A - 33)

Jurisdiction is conferred by 28 U.S.C. Section 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The case involves Section 1 of Amendment XIV to

the Constitution of the United States:

SECTION 1.All persons born or natural-

ized in the United States, and subject to

the jurisdiction thereof, are citizens of

the United States and of the State where-

in they reside. No State shall make or

enforce any law which shall abridge the

privileges or immunities of citizens of

the United States; nor shall any State

deprive any person of life, liberty, or

property, without due process of law;

nor deny to any person within its juris-

diction the equal protection of the laws.

and Amendment V to the Constitution of the United

States:

No person shal! be held to answer for a

capital, or otherwise infamous crime,

unless on a presentment or indictment of

a Grand Jury, except in cases arising in

the land or naval forces, or in the militia,

when in actual service in time of war or

public danger; nor shall any person be

subject for the .same' offense to be twice

put in jeopardy of life or limb; nor 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; nor shall private property

be taken for public use, without just

compensation.

and Amendment V! to the Constitution of the United

States:

In all criminal prosecutions, the accused

shall enjoy the right to a speedy and

public trial, by an impartial jury of the

State and district wherein the crime shall!

have been committed, which district shall

have been previously ascertained by law,

and to be informed of the nature and

cause of the accusation; to be confronted

with the witnesses against him; to have

compulsory process for obtaining witnesses

in his favor, and to have the assistance of

counsel for his defense.

and 28 U.S.C. Section 2254(d):

(d) In any preceeding instituted in a

Federal court by an application for a writ

of habeas corpus by a person in custody

pursuant to the judgment of a State court,

a determination after a hearing on the

merits of a factual issue, made by a State

court of competent jurisdiction in a pro-

ceeding to which the applicant for the

writ and the State or an officer or agent

thereof were parties, evidenced by a

written finding, written opinion, or other

reliable and adequate written indicia, shall

be presumed to be correct, unless the

applicant shall establish or it shall other-

wise appear, or the respondent shall

admit--

(1) that the merits of the fac-

tual dispute were not resolved

in the State court hearing;

(2) that the factfinding proce-

dure employed by the State

court was not adequate to afford

a full and fair hearing;

(3) that the material facts

were not adequately developed

at the State court hearing;

(4) that the State court lacked

jurisdiction of the subject matter

or over the person of the

applicant in the State court

proceeding;

(5) that the applicant was an

indigent and the State court,

in deprivation of his constitu-

tional right, failed to appoint

counsel to represent him in the

State court proceeding;

(6) that the applicant did not

receive a full, fair, and adequate

hearing in the State court pro-

ceeding; or

(7) that the applicant was

otherwise denied due process

of law in the State court

proceeding;

(8) or unless that part of the

record of the State court pro-

ceeding in which the determina-

tion of such factual issue was

made, pertinent to a determina-

tion of the sufficiency of the

evidence to support such factual

determination, is produced as

provided for hereinafter, and

the Federal court on a consid-

eration of such part of the

record as a whole concludes

that such factual determination

is not fairly supported by the

record:

And in an evidentiary hearing in the pro-

ceeding in the Federal court, when due

proof of such factual determination has

been made, unless the existence of one or

more of the circumstances respectively set

forth in paragraphs numbered (1) to (7),

inclusive, is shown by the applicant,

otherwise appears, or is admitted by the

respondent, or unless the court concludes

pursuant to the provisions of paragraph

numbered (8) that the record in the State

court proceeding, considered as a whole,

does not fairly support such factual

determination, the burden shall rest upon

the applicant to establish by convincing

evidence that the factual determination

by the State court was erroneous.

CASE NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1982

R. C. MARSHALL, Superintendent

Southern Ohio Correctional Facility,

Petitioner,

Vv.

JIMMY LEE CLARK,

Respondent.

STATEMENT OF THE CASE

Respondent, Jimmy Lee Clark, was indicted by the

October 1975 Term of the Lake County, Ohio Grand

Jury on one (1) count for the crime of aggravated murder

with a death penalty specification in violation of Ohio

Revised Code Section 2903.01 and one (1) count for the

crime of aggravated robbery in violation of Ohio Revised

Code Section 2911.01. Respondent, while represented

by counsel, was tried to a jury and found guilty as

charged. Subsequent to an ensuing mitigation hearing,

the Ohio trial court found the mitigating circumstance

listed in Ohio Revised Code Section 2929.04. On May

19, 1974, respondent was sentenced to a term of life

imprisonment for the crime of aggravated murder and to

a term of from seven (7) to twenty-five (25) years

imprisonment for the crime of aggravated robbery. The

court ordered that said sentences be served consecu-

tively.’

Prior to trial, respondent filed a motion to suppress

statements which he had given to law enforcement

officers. Pursuant thereto the state trial court conducted

a full and fair evidentiary hearing. The following salient

facts were developed therein: (1) that respondent was

initially taken into custody by officers of Cuyahoga

County, Ohio, on a wholly unrelated criminal charge;

(2) that respondent refused to make a statement regarding

the Cuyahoga County crime and was returned to his jail

cell; (3) that law enforcement officers of Lake County,

Ohio, identified a fingerprint found at the murder scene

as that of respondent and, upon learning of respondent's

whereabouts, proceeded to the Cuyahoga County Jail;

(4) that after the Lake County officers arrived, Cuyahoga

County officials informed respondent that the Lake

County officers had a warrant which charged respondent

with capital murder, that respondent requested to speak

with the Lake County officers and, pursuant to such

request, was led to a room where the Lake County

officers were located; (5) that respondent was advised of

his Miranda rights and waived such rights; (6) that respon-

1. Respondent was also indicted by the January 1976 Term of the

Cuyahoga County, Ohio Grand Jury on one (1) count for the crime of

attempted aggravated murder in violation of Ohio Revised Code Sections

2903.01 and 2923.02 and on one (1) count for the crime of aggravated

robbery in violation of Ohio Revised Code Section 2911.01. Respondent

wes tried and convicted but said convictions were reversed by the Court of

Appeals for the Eighth Judicia! District and the case wes remanded for

retrial. Respondent thereafter entered a piea of guilty to the lesser offense

of felonious assault in violation of Ohio Revised Code Section 2903.11 as

charged in the first count and a nollie prosequi wes entered as to the second

count. Respondent wes sentenced to a term of from two (2) to fifteen (15)

years imprisonment. The court ordered that said sentence be served con-

currently with that previousiy imposed by the Court of Common Pleas of

Lake County.

dent made inquiry of the Lake County officers? and was

informed that his fingerprint had been found on a gas

station safebox shortly after the filling station had been

robbed and the attendant murdered; (7) that respondent

asked to see the fingerprint and was shown an 8 x 10

enlargement; that respondent then stated that he and an

accomplice had, in fact, robbed the gas station but that it

was his accomplice who had killed the attendant? ;

(8) that the Lake County officials then asked respondent

to reduce his statement to writing; (9) that respondent

asked for an attorney and respondent was returned to his

jai’ cell; (10) that the Lake County officers then made

arrangements to transport respondent to the Lake

County Jail for processing* ; (11) that prior to the

leaving of the Cuyahoga County Jail, Lake County

officers briefly initiated further questioning and respon-

dent made a second statement; (12) that in transit to the

Lake County Jail, the police officers took respondent

to the scene of the crime where respondent confessed a

third time; (13) that respondent was taken to the Lake

County Jail and processed; (14) that officers were prepar-

ing to return respondent to the Cuyahoga County Jail®

when respondent stated that he wanted to turn “state’s

evidence” and expressly asked to give a statement® ;

2. After escorting respondent to the room where the Lake County

officers were located, the Cuyahoga County officers left and were not

Present during any statements which respondent thereafter made regarding

the Lake County homicide-robbery.

3. This was the first of four (4) confessions which respondent gave. All

four (4) staterents were materially identical.

4. Ohio has a county rather than state-wide system of law enforcement.

Unde this system, a crime committed in a certain county may only be pro-

secuted by thet county's law enforcement officials.

5. As Cuyahoga County officials had initially arrested respondent, they

had the first right of prosecution as to their charges against respondent.

6. Respondent initiated the conversation wherein he requested to make

the statement.

(15) that at his request, respondent was taken to an

interrogation room; (16) that respondent was again

given his Miranda rights and signed a form expressly

waiving said rights; (17) that respondent attempted to

“make a deal’ with the officers but was told that they

did not have such authority; (18) that a prosecutor

arrived shortly thereafter and respondent was once again

read the Miranda warning and waived said rights; (19) that

the prosecutor told respondent to “think about it’

before making a statement and informed respondent that

no promises could be made; (20) that respondent there-

upon gave a fourth statement which reiterated that he

and his accomplice robbed the gas station but asserted

that his accomplice was the trigger-man; (21) that respon-

dent was again asked to give a recorded statement at

which time respondent requested that an attorney be

present and all questioning immediately ceased.

Respondent chose to testify at the pre-trial suppres-

sion hearing and asserted that he had at all times demand-

ed an attorney and, in any event, had never made the

statements attributed to him by the law enforcement

officials.

At the conclusion of the evidentiary hearing, the

state trial court ordered respondent's second and third

statements suppressed but overruled the motion as to

respondent’s first and fourth statement.

Respondent appealed his conviction to the Ohio

Court of Appeals for the Eleventh Judicial District.

Therein, respondent challenged both the trial court

refusal to suppress al! four (4) of his statements and the

trial court’s instruction on the issue of aider and abettor.

The appellate court rejected said claims and affirmed the

trial court judgment. (A - 50).

Respondent thereafter sought discretionary review

before the Supreme Court of Ohio. The court granted

leave to appeal and affirmed the appellate court judg-

ment.’ State v. Clark, 55 Ohio St. 2d 257 (1979) (A-46).

Respondent's ensuing petition for writ of certiorari was

denied by this Court with three Justices dissenting.

Clark v. Ohio, 440 U.S. 950 (1979).

Respondent then filed a petition for writ of habeas

corpus pursuant to 28 U.S.C. Section 2254 with the

United States District Court for the Northern District

of Ohio, Eastern Division. The district court adopted

in whole the following findings of the magistrate: (1)

that the state court rulings with respect to the admissi-

bility of respondent's statements were fully supported by

the record and; (2) that taken within the context of the

overall charge, the state trial court's instruction regarding

an “aider and abettor” did not violate the Due Process

Clause of the Fourteenth Amendment. (A - 35). As

such, the district court dismissed the petition as without

merit. (A - 34)

The United States Court of Appeals for the Sixth

Circuit reversed the district court judgment. (A - 1).

The circuit court thereafter denied petitioner’s motion

for rehearing and suggestion of rehearing en banc. (A-33).

This petition has followed.

7. The Supreme Court of Ohio did not grant review with respect to the

suppression of statements claim. By law, the court is free to limit its review

to those issues in any individual case which a sufficient number of its

members deem worthy of discretionary review. The sole exception to this

rule exists wher» the death penalty has been imposed.

ARGUMENT IN SUPPORT

OF GRANTING CERTIORARI

1. WHETHER 28 U.S.C. SECTION 2254(d)

MANDATES THAT A_ FEDERAL

COURT REVIEWING A STATE PRIS—

ONER’S HABEAS CORPUS PETITION

AFFORD DEFERENCE TO FACTUAL

DETERMINATIONS MADE BY THE

STATE JUDICIARY WHERE REFER-—

ENCE TO THE TOTALITY OF THE

STATE COURT RECORD DEMON—

STRATES THAT THE STATE COURTS

APPLIED THE CORRECT CONSTITU—

TIONAL STANDARD IN ARRIVING AT

SUCH FACTUAL DETERMINATIONS.

The instant case presents important questions

regarding the scope of this Court’s decisions in Sumner v.

Mata, 449 U.S. 539 (1981)® and LaVallee v. Delle Rose,

410 U.S. 690 (1973). Both decisions involve the defer-

ence which a federal court sitting in a 28 U.S.C. Section

2254 action must afford to factual findings which were

made by the state judiciary subsequent to a full and fair

evidentiary hearing. In Sumner v. Mata, supra, this Court

held that 28 U.S.C. Section 2254(d) mandates that a

federal court sitting in a habeas court action must afford

a presumption of correctness to factual determinations

made by the state judiciary unless the state inmate

demonstrates by ‘convincing’ evidence that such factual

findings are erroneous or otherwise demonstrates that he

falls within the enumerated exceptions to the statutory

8. Opinion after remand, 649 F. 2d 713 (9th Cir. 1981), vacated,

US. , 71 L. Ed 2d 480 (March 22, 1982) [Sumner |!) .

mandate. in LaVa/lee v. Delle Rose, supra, this Court

held that a federal reviewing court “. . . may, in the

ordinary case in which there has been no articulation,

properly assume that the state trier of fact applied

correct standards of federal law to the facts, in the

absence of evidence .. . that there is reason to suspect

that an incorrect standard was in fact applied,” /d. at

694, citing Townsend v. Sain, 372 U.S. 293, 314-315

(1963). The Court further held that a state court's

failure to expressly articulate credibility findings is of no

import where “. . . it can scarcely be doubted from its

written opinion that respondent’s factual contentions

were resolved against him.” /d. at 692.

The circuit court below simply did not comply with

this Court’s directives. While this Court “is not a forum

for the correction of error,’’® the opinion of the circuit

court evidences a fundamental misapprehension of the

de novo review functions of the federal judiciary in light

of 28 U.S.C. Section 2254. Moreover, the error of the

circuit court is not isolated to the instant case but has

been compounded in other decisions. See, e.g., Lonber-

ger v. Jago, 651 F. 2d 447 (6th Cir. 1981), cert. granted

sub nom. Marshall v. Lonberger, U.S. 71

L. Ed 2d 292 (January 11, 1982); Fowler v. Jago, 683 F.

2d 983 (6th Cir. 1982). Where a series of circuit court

decisions demonstrate a clear misunderstanding of this

Court’s opinions, review is warranted in order to avoid

judicial chaos.

In support of its decision not to apply the presump-

tion of correctness mandated by 28 U.S.C. Section

2254(d), the circuit court cited the following two factors:

(1) “. . . doubt as to whether the [state] trial court

correctly utilized the legal standards for waiver of consti-

tutional rights under the Fifth and Sixth Amendments.”

+ Anderson v. Harless, US. 32 Cr. L. 4063 (November 1, 1982)

(dissenting opinion).

(A - 25) and; (2) ”. . . the total absence of fact finding

[by the state trial court].” (A - 23). Neither circuit

court holding can withstand reasoned scrutiny in light of

the state court record.

As previously noted, respondent made four (4)

statements to law enforcement officials. While the sub-

stance of each statement was materially identical, each

was made on a separate and discreet occasion. At the

conclusion of the evidentiary hearing, the state trial court

allowed respondent’s first and fourth statements but

suppressed respondent’s second and third statements.

The trial court found respondent's initial statement

asmissible by stating:

This Court finds from the facts pre-

sented that on December 13, 1975, the

defendant came into contact with two

officers of the Willoughby Police Depart-

ment, Mr. Collins and Mr. Reeves. This

was not defendant's first confrontation

with law enforcement. He had previous

interrogatory confrontations and had on

other occasions been informed of his

rights under such circumstances. He was

not illiterate and admittedly had pro-

gressed in school to the eleventh grade.

Shortly before his first confrontation with

these two officers, he had been read his

rights by a Cleveland Detective and

refused to answer and had demanded a

lawyer, in a distinctly separate investiga-

tion. Detective Gibbons of the Cleveland

Police Department stated that at that

interrogation after the usual Miranda

warning was read, the defendant was

askec if he understood his rights, and he

said that he did. Mr. Collins of the

Willoughby Police Department read the

Miranda warning to defendant upon first

contact. The defendant stated that he

knew his rights and wanted to cooperate

and did cooperate with an inculpatory

statement. This factual fabric was

corroborated by Detective Reeves.

* * *

These two officers both testified that

when defendant was requested to reduce

his oral statement to writing, Defendant

demurred and said that he wished an

attorney. At that point, he was returned

to the detention facility.

* * *

Mr. Clark, the defendant, stated in

testimony upon this hearing that he knew

that oral statements made by him could

be used against him. This admission on

the record negates the interpretation that

he misunderstood the legal effect of his

speaking to Detectives Collins and Reeves.

The trial court gave the following rationale for suppress-

ing respondent's second and third statements:

Clearly any statement made by defen-

dant after his original meeting with the

officers of the Willoughby Police Depart-

ment wouid amount to continued ques-

tioning after an expression by defendant

that he wished to consult an attorney

absent extenuating circumstances wherein

the defendant being fully aware of his

rights reopened the dialogue. This right

to counsel was declared by the U.S.

Supreme Court in Miranda v. Arizona, to

be an indispensable right. Specifically any

statements made by defendant at or about

10:30 a.m. December 13, 1975, on the

third floor of the Cleveland Police Depart-

ment and any statements made on the

same date at the scene of the alleged

offense are suppressed.

The trial court articulated the following reason for allow-

ing the admission for respondent’s final statement:

At the Willoughby Police Station, the

defendant evinced a desire to cooperate

or to turn “State’s Evidence” if there was

a promise that his cooperation would be

made a matter of record and passed on to

the prosecutor and judge. Officer Reeves

wrote a note somewhat to this effect,

however, this note was destroyed. Prose-

cutor Pat Jones appeared at the Willoughby

Police Station and read the defendant the

Miranda warning and asked defendant

if there was anything he wished to ask.

The defendant in response asked:

“ .. if | really tell who really

did it, you understand, | mean,

that means | really get charged

with the same thing still?”

In answer, Mr. Jones informed the

defendant that he could make no prom-

ises. To this, the defendant responded:

“Well really | wanted to turn

State’s Evidence, that’s what |

really wanted to do.”

It is clear from the total testimony that

at this point, Mr. Clark wanted to make

the best deal that he possibly could. Mr.

Clark testified that he clearly understood

his rights after they were read by Mr.

Jones. It must reasonably follow that

having been given the appropriate Miranda

warning and understanding it and having

expressed a desire to exculpate himslef,

any statement given by defendant must

have been voluntary.

The foregoing pronouncements of the state trial

court are clearly supported by the record and, while not

expressly so stating, most assuredly demonstrate that the

trial court did not credit the testimony tendered by

respondent. Even absent such findings, the record of the

pre-trial evidentiary hearing and the resultant ruling of

the trial judge demonstrate beyond peradventure that the

court credited the testimony of the police officers and

discounted that of respondent. As aptly noted by the

federal district court, the reasoning of the state trial

court is “apparent from the testimony.” (A-41). Indeed,

the district court interpretation of the state court’s ruling

is the on/y rationa/ construction that can be made. The

circuit court’s holding that reconstruction of the facts

impliedly found by the state trial court “would be pure

speculation” (A -28) is tantamount to a declaration that

the state court acted out of steer whim and caprice with-

out any regard whatsoever to a rational view of the

evidence before it. Such a denigration of the state

judiciary hardly bespeaks a recognition that both state

and federal judges share co-equal responsibilities in the

administration of federal constitutional law. Townsend

v. Sain, supra, at 314.

The initial statement tendered by respondent was in

clear accord with the dictates of Miranda v. Arizona, 384

U.S. (1966) and Michigan v. Mosley, 423 U.S. 96 (1975)

and was properly admitted while the second and third

statements were a violation of respondent's Sixth Amend-

ment right to have counsel present during questioning

and were, accordingly, suppressed. The final statement

of respondent was given after respondent initiated con-

tact with the officers and requested that he be permitted

to turn “‘state’s evidence” and, as such, was admissible.

Edwards v. Arizona, 451 U.S. 477 (1981).

The district court properly afforded the presump-

tion of correctness mandated by 28 U.S.C. Section 2254

(d). The failure of the circuit court to comply with this

Court's rulings in Sumner v. Mata, supra and LaVall/ee v.

Delle Rose, supra.‘ warrants review by this Court in

order to assure judicial consistency.

The circuit court below also held that it was

impossible to discern from the state court record whether

the trial court had applied the correct federal standard in

making its ruling on the suppression. Again, the record

itself belays the circuit court’s apprehension.

The sole question before the state trial court was

whether respondent has waived his Fifth and Sixth

Amendment rights embodied in the Miranda warning

prior to making each of the separate statements. After

the conclusion of the pre-trial evidentiary hearing, both

respondent’s counsel and the prosecutor tendered argu-

ment prior to the trial court’s ruling. Both parties

agreed that the standard to be employed was that as

articulated in Johnson v. Zerbst, 304 U.S. 458 (1938).

10. The circuit court did not so much as take cognizance of the LaVaiiee

v. Delle Rose, supra decision.

Indeed, respondent’s defense attorney expressly made

reference to the Johnson v. Zerbst, supra standard and

argued to the trial court as follows:

.. . these statements by Mr. Clark were

not the product of his free, voluntary,

knowing and intelligent waiver of his

rights to counsel and against self-incrimin-

ation, understanding what the conse-

quences would be and accordingly, these

statements should be suppressed .. . [Tr.

T. Vol. Il, page 72).

The standard for a valid waiver of federal constitu-

tional rights has been in existence for almost four decades.

The judge in respondent's case was an experienced and

capable jurist who sat as an Ohio appellate court judge

but was expressly commissioned by the Supreme Court

of Ohio to sit as a trial judge for the purpose of respon-

dent’s case. Absent some definitive indication to the

contrary, it is respectfully submitted that it does violence

to both the judge’s competence and the record in this

case to simply speculate that a long standing constitu-

tional standard was not properly employed.

As the circuit court opinion fails to follow the

directives of this Court and as such failure is not isolated

to the instant case, the petition for writ of certiorari

should be granted.

li. WHETHER AN ERRONEOUS JURY

INSTRUCTION REGARDING AN ELE-—

MENT OF A CRIMINAL OFFENSE CAN

EVER BE CONSIDERED HARMLESS

ERROR, WHEN FURTHER INSTRUC—

TIONS TO THE JURY ARE CURATIVE

OF THE ERROR.

The instant case presents an important issue of

constitutional law regarding the scope of federal habeas

corpus review of a state court inmate’s conviction where

the federal reviewing court finds that an isolated portion

of a state trial court’s jury instruction is violative of the

Due Process Clause of the Fourteenth Amendment but

acknowledges that subsequent portions uf the state trial

court’s instruction are fully curative of the perceived

initial defect. The question presented is of national

importance as it definatively states a recurrent issue with

which the lower federal courts are ever increasingly faced.

A resolution of the issue is imperative in order to both

guide the lower federal courts that must routinely decide

such questions and to alleviate the federal-state friction

which portends to undermine the foundations of comity

and federalism upon which our nation was founded.

Respondent was charged as an aider and abettor to

the slaying of the victim, i.e., the prosecution did not

endeavor to prove that respondent was the actual “’trigger-

man.’ As correctly noted by the circuit court, Ohio does

not follow the traditional or common law “felony mur-

der’ doctrine. Rather, the prosecution must prove

beyond a reasonable doubt that the aider and abettor

possessed the requisite mens rea. Under Ohio law, where

persons enter into a common design to commit a robbery

and the participants are aware that a deadly weapon is to

be employed to commit the felony, such evidence is

sufficient to allow a jury to find a purposeful intent to

kill as against an aider and abettor even though the aider

and abettor was not actually present at the time of the

homicide. State v. Lockett, 49 Ohio St. 2d 48 (1976).

This principle was reaffirmed when the Supreme Court of

Ohio reviewed respondent's conviction. State v. Clark,

55 Ohio St. 2d 257 (1979). However, the establishment

of such evidence by the prosecution only provides a

sufficient evidentiary basis upon which the trier of fact

may infer purposeful intent to kill and it is reversible

error for the trial court to instruct the jury that the mens

rea element has been proven as a matter of law. State v.

Scott, 61 Ohio St. 2d 155 (1980).

_ In respondent’s case, the trial court initially

instructed the jury as follows:

It must be established in this case that

at the time in question there was present

in the mind of the defendant and/or his

accomplice a specific intention to cause

the death of Joseph H. Bradshaw, Jr.

As the jury “could” have interpreted the foregoing

instruction as alleviating the prosecution of the burden of

proof with respect to respondent’s individual mens rea,

both the circuit court and the district court found that

such an instruction, standing alone, would constitute a

violation of the Due Process Clause of the Fourteenth

Amendment. Sandstrom v. Montana, 442 U.S. 510

(1979).

Having agreed that the instruction quoted above,

when viewed in isolation, constituted a due process

violation, the district court and the circuit court parted

company.

The district court applied the following analysis:

. . . due process required that the court

instruct the jury that to convict Mr. Clark

of aggravated murder it must, among

other elements, find that he possessed an

intention or purpose to kill. Im determin-

ing whether the jury was correctly instruc-

ted as to the element of purpose a single

instruction to the jury may not be judged

in artificial isolation, of the overall charge,

Cupp v. Naughten, 414 U.S. 141 (1973).

During the course of its instructions the

court informed the jury that petitioner

was presumed to be innocent (T, Vol. 4,

p. 383). The court subsequently instructed

the jury (T, 390):

Before you can find the defen-

dant guilty of aggravated mur-

der you must find beyond a

reasonable doubt that Joseph

Bradshaw, Jr. was a living

person; that his death was

caused by the defendant in

Lake County, Ohio on or about

the 7th day of December, 1975;

that the killing was done

purposely and that the kil! was

done while the defendant was

committing aggrvated robbery.

The court then defined purpose, where-

in was inserted the sentence emphasized

herein the petitioner (T, 390-391). The

court then defined an accomplice and

further noted in part that, “When two

persons have a common purpose to

commit a crime and one does one part

and a second performs another, those act-

ing together are equally guilty of the

crime.” (T, 391). The court quoted Ohio

Revised Code Section 2923.03 for the

jury as follows (/d.):

No person acting with the kind

of culpability required for the

commission of an offense shall

do any of the following: Aid

or abet another in committing

the offense.

The Court then instructed (T,

391):

Before you can find Jimmy

Lee Clark guilty of aggravated

murder in the first count of the

indictment you must find

beyond a reasonable doubt that

he aided, abetted, assisted or

encouraged another, Willie

Jones, to purposely cause the

death of Joe Bradshaw, Jr.

The charge of aggravated murder

against petitioner also had a specification

that he committed the crime while also

committing aggravated robbery.

The court instructed the jury that the

issue surrounding the specification raised

a separate question. As noted by the

court (T, 394), “That separate question

which you will be called upon to decide

is, did the defendant, Jimmy Lee Clark,

purposely cause the death of Joseph

Hiram Bradshaw, Jr., while committing

aggravated robbery.”” (T, 393). The court

then informed the jury that a finding of

guilty on this question “must be proved

beyond a reasonable doubt”’ (/d.).

When the one sentence portion of the

charge quoted by petitioner is viewed in

isolation use of the word “‘or’’ within the

phrase “‘and/or’’ would potentially focus

attention of the jury only on whether

petitioner’s accomplice had a purpose to

kill. However, this sentence was not

prefaced by an instruction as to what

elements the state had to prove beyond a

reasonabie doubt. Consideration of this

isolated sentence within the context of

the overall instructions readily reveals

that the jury was instructed that it must

find petitioner had the purnose to kill if it

was to find him guilty of aggravated

murder.

The district court thus correctly recognized that “’a

single instruction to a jury may not be judged in artificial

isolation but must be viewed in the context of the overall

charge.” Cupp v. Naughten, 414 U.S. 141, 146-147

(1973). The district court correctly noted that respon-

dent was charged with both the substantive offense of

aggravated murder and a death penalty “specification.”

The trial court instructed the jury that the “specification”

was a separate question which the prosecution had to

establish beyond a reasonable doubt. The trial court

instructed the jury that they had to find beyond a

reasonable doubt:

.. . did the defendant, Jimmy Lee Clark,

purposely cause the death of Joseph H.

Bradshaw, Jr. [emphasis added] .

It is undisputed that said instruction was in accord with

due process dictates. The district court thus held that as

the jury returned a verdict of guilty as to both factual

determinations any initial error was cured as the jury

obviously found beyond a reasonable doubt that respon-

dent had the requisite mens rea. Without analysis, the

circuit court simply disagreed by stating the latter

instruction “did not cure the ambiguities on the basic

aggravated murder charge.” (A - 12).

The question of whether a faulty jury instruction is

susceptible to a finding of harmless error has been

expressly left open by this Court. Sandstrom v. Montana,

supra at 526-527. Indeed, this Court only recently heard

argument on precisely this question. Connecticut v.

Johnson, No. 81-927 (argued Ocotber 13, 1982). The

instant case presents an even more compelling instance of

harmless error as the trial court clearly corrected any

initial error in its later jury instructions.

As the question presented herein is one of recurring

nature and as it has been expressly reserved in prior

decisions of this Court, certiorari should be granted to

resolve this issue of national importance.

Respectfully submitted,

WILLIAM J. BROWN

Attorney Genera/ of Ohio

RICHARD DAVID DRAKE

Counsel of Record

Assistant Attorney Genera/

State Office Tower

30 East Broad Street, 26th Floor

Columbus, Ohio 43215

(614) 466-5414

ATTORNEYS FOR

PETITIONER

CERTIFICATE OF SERVICE

| hereby certify that the requisite number of copies

of the foregoing Petition for Writ of Certiorari have been

served on respondent, Jimmy Lee Clark, by forwarding

such copies through the office of his counsel, Albert E.

Purola, 38052 Euclid Avenue, Willoughby, Ohio 44094,

by United States Mail, postpaid, this day

of November, 1982. | further certify that all parties

required to be served have been so served. Respondent's

address is the Southern Ohio Correctional Facility at

Lucasville, Ohio.

RICHARD DAVID DRAKE

Assistant Attorney Genera/

APPENDIX

Opinion, April 23, 1982, United States Court of

Appeals for the Sixth Circuit, Clark v. Jago,

676 F.2d 1099 (6th Cir. 1982), reversing

Giawriet GOUTE RONG . ww ccc cccccccscces

Order, September 13, 1982, United States Court

of Appeals for the Sixth Circuit, denying

SE a CED obec ves avccaccenses A-

Order, December 10, 1980, United States District

Court for the Northern District of Ohio,

Eastern Division, dismissing petition for writ

SP cee bd cen aeeudeseeeeses A-

Opinion, August 16, 1978, Supreme Court of

Ohio, State v. Clark, 55 Ohio St. 2d 257

(1978), affirming the appellate court judg-

Ps .aten eb eee hee ne Ons One ee osnkece A-

Opinion, May 31, 1977, Ohio Court of Appeals

for the Eleventh Judicial! District, affirming

the trial court judgment ................. A-

No. 81-3042

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JIMMY LEE CLARK,

Petitioner-Appellant,

ARNOLD R. JAGO,

Respondent-Appell/ee.

APPEAL from the United States District Court

for the Northern District of Ohio.

Decided and Filed April 23, 1982.

Before: KEITH and MARTIN, Circuit Judges; and

DUNCAN, District Judge. *

DUNCAN, District Judge. Jimmy Lee Clark was

convicted of aggravated murder and aggravated robbery

after a trial by jury in the Court of Common Pleas for

Lake County, Ohio. Although the jury found one of the

Ohio statutory criteria for the imposition of the death

penalty to have been met,' the Court found a mitigating

circumstance? and sentenced Clark to life imprisonment

for aggravated murder and to a term of seven years

imprisonment for aggravated robbery. The sentences are

to be served consecutively.

*The Honorable Robert M. Duncan, Judge, U.S. District Court for the

Southern District of Ohio, sitting by designation.

Ge Section 2929.04, Ohio Revised Code, (effective January 1, 1974, but

subsequently amended). See also Lockett v. Ohio, 438 U.S. 586 (1978).

2. The Court found that Clark was mentally deficient and that the crime

of murder was primarily produced by this deficiency. Jt. App. p. 5. A.C.

2903.01 end R.C. 2911.01.

This appeal from the District Court’s dismissal of

Clark’s petition for habeas corpus under 28 U.S.C. Section

2254 presents important Fifth, Sixth, and Fourteenth

Amendment questions. We believe the petition should

not have been dismissed.

1. The Jury Instructions

Appellant’s challenges to the instructions regarding

aggravated murder were rejected by the Ohio courts,

including the Supreme Court of Ohio, State v. Clark, 55

Ohio St.2d 257, 379 N.E.2d 597 (1978). Clark’s petition

for a writ of certiorari was denied by the United States

Supreme Court. Clark v. Ohio, 440 U.S. 950 (1979).3

For the reasons discussed below, we find that appellant’s

Due Process rights were violated by the jury instructions

and accordingly reverse the judgment of the District Court.

The Supreme Court of Ohio summarized the facts

ceveloped during the course of Clark’s trial as follows:

On the morning of December 7, 1975, appellant,

Jimmy Lee Clark, and a companion, Willie Jones,

drove from Cuyahoga County to a gas station

located just off Interstate 90 in Lake County.

Upon their arrival the two men entered the gas

station and confronted the attendant, Joseph H.

Bradshaw, who was sitting on a stool in the front

office. When Jones produced a handgun, Brad-

shaw reached into his pocket and gave Jones his

money. Appellant and Jones then ordered Brad-

shaw back into the bay area of the gas station,

where Bradshaw was made to lie on the floor

while his coin and wallet were removed. There-

after, appellant went into a back room and

3. Three Justices voted to grant the writ.

removed some coins from a money box. Foliow-

ing this, Jones marcned Bradshaw into the back

room, from which appellant heard the sound of

two gunshots as he was exiting the back room.

Appellant and Jones then departed in their

vehicle, and soon afterward Bradshaw was dis-

covered lying dead, face down in the back room,

with bullet wounds in the head and neck.*

The Court’s charge, of course, has been reviewed in

totality ;> we find the following parts pertinent:

Before you can find the Defendant guilty of

aggravated murder you must find beyond a

reasonable doubt that Joseph Bradshaw, Jr. was 2

living person; that his death was caused by the

Defendant in Lake County, Ohio on or about the

7th day of December, 1975; that the killing was

done purposely and that the killing was done

while the Defendant was committing aggravated

robbery.

Purpose to cause the death of another is an

essential element of the crime of aggravated

murder. A person acts purposely when it is his

specific intention to cause a certain result. /f

must be established in this case that at the time in

4. Clark argues that the Supreme Court of Ohio's summary of the facts

is clearly wrong with respect to his location at the time of the actual shoot-

ing As noted above, the Supreme Court wrote: “Jones marched Bradshaw

into the back room, from which appellant heard the sound of two gunshots

as he was exiting the back room.” (Emphasis added.) The record, however,

suggests that Clark was either in the getaway car waiting for Jones when he

heard the shots or was on his wey to the car. Tr. 51-56. In any event, the

Precise location of Clark at the time the shots were fired is not significant

and will accordingly play no part in the Court's review.

5. The trial court adequately charged on the presumption of innocence,

burden of proof, and reasonable doubt as defined in R.C. 2901.05.

question there was present in the mind of the

Defendant and/or his accomplice a specific

intention to cause the death of Joseph H. Brad-

shaw, Jr.

An accomplice is a person who knowingly aids,

abets, assists, encourages or directs or associates

himself with another in the commission of a

crime and he is regarded as if he were a principal

offender and is just as guilty as if he personally

performed every act constituting the offense. This

is true even if such person was not physically

present at the time the crime was committed.

When two persons have a common purpose to

commit a crime and one does one part and a

second performs another, those acting together

are equally guilty of the crime. Section 2923.03

of the Ohio Revised Code entitied Complicity

reads in part as follows:

“No person acting with the kind of culpability

required for the commission of an offense shall

do any of the following: Aid or abet another in

committing the offense.”’

Before you can find Jimmy Lee Clark guilty of

acaravated murder in the first count of the indict-

mn J9t you must find beyond a reasonable doubt

that he aided, abetted, assisted or encouraged

another, Willie Jones, to purposely cause the

death of Joe Bradshaw, Jr.

A person acts purposely when the jist of his

offense is a prohibition against conduct of a certain

nature regardless of what the offender intended

to accomplish thereby. If it is his specific inten-

tion to engage in conduct of that nature he has a

conscious objective of producing a specific result.

of engaging in specific conduct to do an act.

Purpose is a decision of the mind to do an act

with a conscious objective producing a specific

result of engaging in specific conduct to do an act.

Purposely is to do it intentionally and not acci-

dently. Purpose and intention mean the same

thing. The purpose with which a person does an

act is known only to himself unless he expresses

it to others or indicates it by his conduct. The

purpose with which a person does an act is de-

termined by the manner in which it is done, the

weapon used and all of the facts and circumstances

that are presented to you in evidence.

While committing aggravated robbery means

that the killing must have occurred as part of

those acts leading up to or occurring during the

commission of the aggravated robbery and that

the killing was directly associated with the aggra-

vated robbery. (Emphasis added.)

In addition to the charge on aggravated murder and

aggravated robbery, the court instructed the jury to

determine whether there was proof of one of the criteria

for imposing the death penalty under RC 2929.04(7).

The court stated:

That separate question which you will! be called

upon to decide is, did the Defendan:, Jimmy Lee

Clark, purposely cause the death of Joseph

Hiram Bradshaw, Jr., while committing aggra-

vated robbery.

After the jury was charged and began deliberation, it

requested the court to define aggravated murder and aid-

ing and abetting. The elements of the crime and the

complicity statute were again read to the jury.

A-6

It should be clearly understood that a review of the

constitutional adequacy of jury instructions is far

different from a review of the sufficiency of the evidence.

Whether there is sufficient evidence to support a convic-

tion for aggravated murder is a question that we need not

answer.© Rather simply stated, our query is whether the

jury charge considered as a whole advised a reasonable

juror that the prosecution had the burden of proof of the

essential elements of the crime of aggravated murder

according to Ohio law. If the charge could have been

interpreted by a reasonable juror to relieve the state of its

burden to prove each of the essential elements, then

Clark was denied the process that the constitution makes

due. Sandstrom v. Montana, 442 U.S. 510, 517 (1978);

In re Winship, 397 U.S. 358 (1970); Burton v. Bergman,

649 F.2d 428 (6th Cir. 1981).

Ohio has left the company of those jurisdictions

which have traditional “felony murder” offenses. In such

jurisdictions first-degree murder does not always require

proof of an intent to kill. The underlying felony or

predicate offense may serve as an intent-divining

mechanism which compounded with a homicide supports

a first degree or aggravated murder conviction. See

Whalen v. United States, 445 U.S. 684, 713 (1980)

(Rehnquist, J., dissentina).

Under Ohio law, however, purpose to kill is an

essential element of the crime of aggravated murder.’

6. In affirming the conviction, the Supreme Court of Ohio found the

evidence sufficient but did not specifically address the jury instruction ques-

tion. State v. Clark, 55 Ohio St.2d 257, 379 N.E.2d 597, cert. denied, 440

U.S. 950 (1979).

?. R.C. 2903.01 (B) and (C) provides:

(B)No person shall purposely cause the death of another while

committing or attempting to commit, or while fleeing immediately

after committing or attempting to commit kidnapping, rape, aggravated

arson or arson, aggravated robbery or robbery, aggravated burglary or

burglary, or escape.

and shal! be punished as provided in section 2929.02 of the Revised

Code.

State v. Lockett, 49 Ohio St.2d 48, 358 N.E.2d 1062

(1976), reversed on other grounds, sub nom. Lockett v.

Ohio, 438 U.S. 586 (1978); State v. Clark, 55 Ohio St.2d

257, 379 N.E.2d 597, cert. denied, 440 U.S. 95C (1979).

Both the Supreme Court of Ohio and the Court of

Appeals affirmed Clark’s convictions, citing State v.

Lockett, supra. Paragraphs 3 and 4 of the syllabus of

Lockett are as follows:

3. Where the record in a prosecution for aggra-

vated murder committed during the commission of

an armed robbery establishes that the participants

in the offense entered into a common design to

commit the armed robbery by the use of force,

violence and a deadiy weapon and al! the partici-

pants were aware that an inherently dangerous

instrumentality was to be employed to accomplisn

the felonious purpose, a homicide occurring

during the commission of the felony is a natural

and probable consequence of the common plan

which must be presumed to have been intended,

and such evidence is sufficient to allow a jury to

find a purposeful intent to kill.®

8 The case at bar does not require us to consider any constitutione!

question that may be presented by the ‘presumption’ suggested by the third

peragraph of the Lockett syilabus. Lockett could be read as establishing a

mandatory presumption regarding intent in murder cases involving aiders and

abetters; but, the Supreme Court of Ohio has suggested in a subsequent

opinion that the Lockett syllabus described only a factual basis from which

the jury could infer a purpose to kill. State v. Scott, 61 Ohio St.2d 155, 379

N.E.2¢ 597 (1978). The trial court in this case did not utilize the Lockert-

Scott inference in its instructions to the jury. Mr. Justice White alluded to

the problem in his concurring opinion in Lockett vy. Ohio, 438 U.S. 586,

627-28 (1978) when he wrote in the context of his views on the death penalty:

Of course, the facts of both of these cases might well permit

the inference that the petitioners did in fact intend the death of

the victims. But there is a vast difference between permitting a

factfinder to consider a defendant's willingness to engage in

4. \f aconspired robbery, and the manner of its

accomplishment, would be reasonably likely to

produce death, each person engaged in the

common design to commit the robbery is guilty

with the principal killer as an aider and abetter

in the homicide although not actually present at

the time of the homicide, and a purposeful intent

to kill by the aider and abetter may be found to

exist beyond a reasonable doubt under such

circumstances.

In State v. Scott, 61 Ohio St.2d 155, 400 N.E.2d

375 (1980), however, the Supreme Court of Ohio

emphasized the importance of the element of purpose to

kill in situations where a defendant is charged as an aider

and abetter. In that case, Sccii together with individuals

named Moore and LeRoy, initiated a plot to kidnap and

hold for ransom a prosperous business figure named

Emoff. Emoff was later murdered. Scott was brought to

trial, and after the jurors had begun deliberating, the

jurors presented the trial court with the following

question:

According to the /aw if a defendant is guilty of

of kidnapping and the victim is never released

alive even though the defendant had no know-

ledge of nor participation in the murder, by

reason of being implicated in the kidnapping is he

also guilty of aiding and abetting the murder?

criminal conduct which poses a substantial risk of death in decid-

ing whether to infer that he acted with a purpose to take life, and

defining such conduct as an ultimate fact equivalent to possessing

@ purpose to kill as Ohio has done. See United States v. United

States Gypsum Co. (438 U.S. 422 (1978)) Indeed, the type of

conduct which Ohio would punish by death requires at most the

degree of mens rea defined by the AL! Mode! Penal Code (1962)

as recklessness: conduct undertaken with knowledge that death

is likely to follow.

61 Ohio St.2d at 166, 400 N.E.2d at 383. The trial court

answered that ‘’[s]uch a defendant is also guilty of aiding

and abetting the murder.’’ Rejecting this implicit adop-

tion of the strict felony murder rule, the Supreme Court

of Ohio wrote:

Id.

The trial court's affirmative answer would have

been correct only if Ohio adhered to the strict

felony murder rule. That is, appellant would be

“guilty of aiding and abetting the murder * * *

[soley] by reason of being implicated in the kid-

napping * * *” only if the mens rea requirement

for murder could be supplied by the mental

element of the underlying kidnapping.

Ohio, however, does not follow the strict

felony murder rule. ‘[P]urpose to kill is an

essential element of the crime of first degree

murder in this state.” State v. Lockett, supra

49 Ohio St.2d at pages 58-59, 358 N.E.2d at page

1070; Robbins v. State (1857), 8 Ohio St. 131;

State v. Farmer (1951), 156 Ohio St. 214, 102

N.E.2d 11. Accordingly, paragraphs three and

four of the syllabus in Lockett describe the

factual basis from which a jury could infer

appellant’s purpose to kill, as required by the

aggravated murder statute. See Part VII, supra.

See also, State v. Johnson (1978), 56 Ohio St.2d

35, 38, 381 N.E.2d 637. In effect, the trial

court’s affirmative answer to the jury question

improperly relieved the state of its duty to prove

appellant’s purpose to kill beyond a reasonable

doubt. See /n re Winship (1970), 397 U.S. 358,

364, 90 S.Ct. 1068, 25 L.Ed.2d 368.

Thus, under Ohio Law, a defendant’s purpose to

kill must be proved as an essential element of the crime

A-10

of aggravated murder even where the prosecution proceeds

on an aider and abetter theory.2 Certainly, purpose to

kill may reasonably be inferred from proven facts, and a

‘“‘non-triggerman’’ can be convicted under this statute.

The Due Process Clause of the Fourteenth Amend-

ment requires ‘proof beyond a reasonable doubt of every

fact necessary to constitute the crime with which [defen-

dant] is charged.’ /n re Winship, 397 U.S. 358, 364

(1970): Sandstrom v. Montana, 442 U.S. 510, 520

(1978). Thus, the question presented here, as in Sand-

strom, is “‘whether the challenged jury instruction had

the effect of relieving the State of the burden of proof

enunciated in Winship on the critical question of peti-

tioner’s state of mind.” 442 U.S. at 521. Under Sand-

strom, supra, the test employed in reviewing jury instruc-

tions involving presumptions was described as follows:

[The] determination requires careful attention to

the words actually spoken to the jury .. . for

whether a defendant has been accorded his

constitutional rights depends upon the way in

which a reasonable juror cou/d have interpreted

the instruction. /d. at 514 (Emphasis added.)

9. R.C. 2923.03 provides:

(A) No person, acting with the kind of culpability required for

the commission of an offense, shall do any of the following:

(2) Aid or abet another, in committing the offense;

(F) Whoever violates this section is guilty of complicity in the

commission of an offense, and shal! be prosecuted and punished as

if he were a principal offender. A charge of complicity may be

stated in terms of this section, or in terms of the principal offense.

(Emphasis added.)

A-11

In contrast to Sandstrom, this case does not directly

involve the use of a presumption as such. That is, the

jury was never instructed that it must or might infer that

the defendant had a purpose to kil! based upon other

facts in evidence. Instead, the jury in this case was

instructed that the essential element of purpose to kil!

could be found in the mind of the defendant “and/or”

his accomplice. Nevertheless, the principles articulated

in Sandstrom are equally applicable here. Under Sand-

strom principles we have no doubt that this isolated por-

tion of the charge relieved the state of its burden to prove

that Clark had a purpose to kill the victim.

Our task, however, does not end there. The

magistrate’s report, which was adopted by the District

Court below, recognized the constitutional problem in

the trial court’s charge. However, the magistrate reasoned

that the problematic portion of the charge “within the

context of the overall instruction readily reveals that the

jury was instructed that it must find petitioner had the

purpose to kill if it was to find him guilty of aggravated

murder.” Jt. App. 27. We agree that a review of the

complete charge is required. Cupp v. Naughten, 414

U.S. 141 (1973). We disagree with the magistrate’s

conclusions, however.

The portion of the charge on the elements of

aggravated murder read as follows:

Before you can find the Defendant guilty of

aggravated murder you must find beyond a

reasonable doubt

[1] that Joseph Bradshaw, Jr. was a living person;

[2] that his death was caused by the defendant

in Lake County, Ohio on or about the 7th

day of December, 1975;

[3] that the killing was done purposely;

[4] and that the killing was done while the defen-

dant was committing aggravated robbery.

Conspicuously absent from number [3] above was a

requirement that the killing was done purposely by the

defendant.

Next, the jury was instructed that “it must be

established that at the time in question there was present

in the mind of the defendant and/or his accomplice a

specific intention to cause the death.” After a very

general definition of the term “accomplice,”’ the court

read R.C. 2923.03 in pert as follows: ‘No person acting

with the kind of culpability required for the commission

of an offense shal! do any of the following: aid or abet

another in committing the offense.’’ Next, the court

stated in effect that if Clark aided or abetted Jones to

purposely cause the death of the victim he could be

convicted of aggravated murder. Nowhere does the court

make clear that Clark’s ‘‘culpability’’ or mental state

cannot automatically be that of Jones. The jurors were

never told that Clark’s culpability, whether established

by direct proofs or by the Lockett-Scott inference must

be first established before he can be an aider or abetter or

an accomplice to aggravated murder.

Finally, the trial court instructed the jury concerning

one of the criteria for the imposition of the death penalty

under R.C. 2929.04(7). The court explained:

That separate question which you will be called

upon to decide is, did the Defendant, Jimmy Lee

Clark, purposely cause the death of [the

victim]... .

This is the only portion of the entire charge which

specifically required a finding of purpose to kill on the

part of Clark. We believe, however, that an instruction

requiring purpose to kill on the “separate question” of

penalty did not cure the ambiguities on the basic aggra-

vated murder charge discussed above.

!f the trial judge was attempting to charge based on

the law of Lockett, the mark was missed. The essential

ingredients of the Lockett mechanism for the inference

of purpose to kill were not provided to the jury. That is,

the jury was never told that it might infer Clark's purpose

to kill if “the participants in the offense entered into a

common design to commit the armed robbery by the use

of force, violence and a deadly weapon and all the partici-

pants were aware that an inherently dangerous instru-

mentality was to be employed... . .""'° Lockett v. Ohio,

supra. While we commiserate with the plight of an Ohio

trial judge faced with the difficulty in charging a jury on

aggravated murder under Ohio law, it is not impossible.

Upon review of the entire charge, we are convinced

that the words “actually spoken to the jury,” Sandstrom,

supra, at 514, could have been interpreted by a reasonable

juror in an improper manner. The charge could easily

have been interpreted to mean that Clark, personally, did

not have to have purpose to kill, and that Jones’ purpose

was sufficient to convict Clark, even if not shared by

Clark.

We are also convinced that the erroneous jury

instruction was not harmless error. In Burton v. Bergman,

649 F.2d 428 (6th Cir. 1981), Burton was convicted in a

Michigan state court of assault with intent to commit

murder. At trial, the Court instructed the jury that “‘the

law presumes that any ordinary human being intends the

ordinary consequences of his or her acts.” /d. F.2d at

430. Applying Sandstrom, this Court concluded that “the

trial court’s instructions created a substantial risk that the

jury would believe the presumption provided the necessary

proof of petitioner’s intent beyond a reasonable doubt.”

/d. F.2d at 431. We also rejected the respondent's argu-

ment that the erroneous instruction was harmiess. Here,

10. As noted above, our decision today does not require us to pass upon

the presumption or inference suggested by Lockett. See note 8, supra.

as in Burton, the inference that Clark had the purpose to

kill the gas station attendant was ‘‘by no means inescapa-

ble.’ /d. at 432. We accordingly conctude;consistent” ~~

with Burton, that “[i]f the trial court had refrained from

giving the improper instruction, the jury might have enter-

tained a reasonable doubt [that Clark had a purpose to

kill the victim]. Such an error cannot be harmless.” /d.

Our decision is a narrow one. Again, we do not

suggest that there was insufficient evidence in the record

from which the jury could permissibly infer that Clark

had a purpose to kill the victim. We hold only that where

purpose to kil! is an essential element of the crime of

aggravated murder, a jury instruction permitting that

alement of culpability to be found in either the defendant

or his accomplice is violative of the principles of Due

Process under the Fourteenth Amendment.

It. Clark's Statements to Police

Clark made a total of four incriminating oral state-

ments to Willoughby, Ohio, police officers. The first and

second statements were made at a Cleveland, Ohio, police

station. The third statement was made at the Arco gas

station where the robbery and murder took place. The

fourth statement was made at the Willoughby police

station. After granting defendant-appellant’s pretrial

motion to suppress the second and third statements, the

state trial court admitted into evidence the first and fourth

statements. At the hearing on the motion to suppress,

the facts surrounding Clark’s statements to the police

were developed. However, noticeably absent from the

record are many findings of fact or analysis of the

applicable law.

A-15

We conclude that this absence of fact finding

coupled with our doubt as to whether the state trial court

used the proper legal standards of waiver requires remand

for further proceedings by the District Court.

The following facts are evident in the record.''

Clark was arrested by Cleveland police officers on

December 12, 1975, at approximately 8:00 a.m. on an

aggravated robbery charge which was unrelated to the

crimes for which Clark was convicted below. At the time

of his arrest, Robert Tonne, a Cleveland police officer,

allegedly gave Clark the Miranda warnings. Clark testified

that he was not given his rights when arrested, but was

later given the rights at the police station. Clark apparently

made no statements on the day of his arrest.

On the morning of the next day, December 13,

1975, Clark was interrogated by Cleveland police officers

Tonne and Gibbons. Tonne testified that Gibbons gave

Clark the required Miranda warnings prior to questioning.

Clark testified that he was not given his rights but he

asked for an attorney. Clark said he knew nothing about

the robbery for which he had been arrested and did not

wish to talk to the officers.'? Clark was then returned

to his cell block.

11. In the following discussion, certain facts are evident in the testmony

of the police officers. in many instances, Clark's testimony conflicts with

that of the officers. This description of the facts is not meant to bind the

District Court in its treatment of the facts on remand.

12. Cleveland police officer Gibbons sited as follows: (Tr. 102-103)

Q. Did you ask him if he wished to talk to you?

A. Yes.

Q. And what was his response?

A. He didn’t want to talk to us.

A- 16

The Cleveland police officers, Tonne and Gibbons,

went to the scientific investigation unit where they

“bumped into’’ Willoughby police officers Collins, Reeves

and Eisele. The Cleveland officers learned that one of

Clark’s fingerprints had been found on a cash box at the

scene of the homicide for which Clark was eventually

convicted. The Cleveland officers then returned to the

fourth floor and again requested that Clark be brought

out of his cell. Clark was confronted with the matching

photographs of his fingerprints taken from his Cleveland

police files and the scene of the crime. In addition, a

Willoughby Municipal Court arrest warrant for aggravated

murder was read to him. Clark stated that he “wanted to

talk to the Willoughby police officers’’ who were down-

stairs in the criminal investigation unit. The Willoughby

officers, Collins and Reeves, were sent for and thereafter

entered the interrogation room. The Cleveland officers

left the room.

Collins testified that he began advising Clark of his

rights and Clark stated that he knew them. Collins never-

theless continued to advise Clark of his rights. Clark

agrees that his rights were read to him at this point.

According to the officers, Clark responded that he under-

stood, that he wanted to cooperate, and that he wanted

to make a statement. The officers claim that Clark said

he wouldn't make a written or taped statement, but he

was willing to talk about what had taken place. There-

after, according to Detective Reeves of the Willoughby

Police Department, Clark made a statement implicating

himself in the robbery of the Arco station. Clark denied

that he made a statement. This statement was related to

the jury at trial by Detective Reeves. At the conclusion

of Clark's statement to the Willoughby police, Clark was

again asked if he wanted to put the statement on tape or

make a written statement. Clark responded that he did

not and requested an attorney. At that point, all

questioning of Clark ceased, and according to Detective

Collins, Clark was taken back to his cell block.

A-17

Detective Eisele’s testimony reveals a_ slightly

different version of the facts. Eisele apparentiy was not

present when Clark made the first oral statement, and he

testified that when he entered the room Collins requested

that the warrant be read and explained to Clark. Eisele

read the warrant. Clark asked, ‘Well, what does that

mean?’’ He was told that he was charged with a capita!

offense. Clark also asked about the fingerprints, “How

can | be sure they are mine?’ He was told one was

removed from a cash box at the crime scene. According

to Eisele, after this conversation Clark was returned to a

cell.

Collins and Eisele then went to the jai! office and

arranged to transport Clark to Willoughby. About 15

minutes later they were given custody of Clark, who,

according to the officers, then stated that he wanted to

make a statement and cooperate. Reeves and Eisele

waited with Clark in the hallway while efforts were made

to obtain a “statement room.”’ During this wait, Eisele

had conversation with Clark. Eisele claims that he

reminded Clark of his rights, explained that he was not

required to say anything, and asked what happened to

the gun involved in the case. Eisele testified that Clark

responded by describing the gun and where it was located.

The trial court suppressed this second statement. Clark

denied making a statement in the hallway.

A statement room then became available. Clark was

again advised o. his rights by the typist in the statement

room. After being advised of his rights, Clark refused to

sign a written waiver and again requested an attorney.

Detective Tonne made efforts to obtain a public defender

in the same building, but an attorney was not available.

The questioning of Clark was terminated.

The Willoughby police then placed Clark in a vehicle

for transportation to Willoughby. Reeves was the driver

and Eisele was in the passenger’s seat. Sergeant Collins

sat in the back next to Clark. Collins asked Clark if he

would mind going to the Arco station on the way back to

Willoughby. The officers testified that Clark was given

Miranda warnings and thereafter he agreed to go to the

Arco station. Clark testified that he told the officers that

he didn’t want to go to the station. Clark allegediy made

a statement to the Willoughby police at the scene of the

crime. The trial court ordered this third statement

suppressed.

The fourth statement made by the defendant

occurred at the Willoughby police station. Clark was

given food and processed by the Willoughby police.

Around 2:30 p.m. Clark was in the process of being

removed from the cell block for his return to Cleveland.

The officers claim that Clark told them that he wanted

to make a statement and cooperate. Clark testified

that they kept trying to get him to make a statement, but

he kept asking for an attorney. Clark then executed a

copy of the Willoughby police rights form which included

an express waiver of the right to counsel.’ 3

13. VOLUNTARY STATEMENT — WAIVER OF RIGHT TO PRES-

ENCE AND ADVICE OF A LAWYER FREE OF [COST TO) ME IF 1AM

INDIGENT.

Date 12-13-1975 TIME 2:30 PM PLACE Willoughby Police Dept.

|, Jimmie Lee Clark am 21 years of age, my address is 9713 Heath Avenue

Cleveland, Ohio

| have been cautioned by Det. Laurence M. Reeves who has identified himseih

as a WiILLOUGHBY POLICE OFFICER, and who has warned me as follows:

WARNING

| am a police officer, | warn you that anything you say may be

used in a Court of Law against you; That you have an absolute

right to remain silent; That you have the right to the advice of a

lawyer before and the presence of a lawyer here with you during

questioning, and That, if you cannot afford a lawyer, one will be

furnished for you free before any questioning if you desire.

| hereby state that | want to make a statement without 2 lawyer, that is to

say, give up and do without the right to talk to a lawyer and ask his advice

A-19

According to the officers, after Clark had executed

the waiver form, he began bargaining with the police. The

police did not yet have the name of Clark’s accomplice

in the robbery and murder. Clark indicated his willingness

to give the name of the accomplice provided he was given

written guarantees that his cooperation would be

explained to the court. Clark claims he signed the waiver

after he was given the assurances. The police sought the

assistance of their city prosecutor, Clifton Jones. The

questioning of Clark was suspended unti! Jones arrived.

When Jones arrived, Jones again advised Clark of his

Miranda rights. A tape recorder recorded Jone’s advice to

Clark. Clark, however, insisted that the tape be turned

off prior to making a statement, and Jones complied with

the request. After the tape was turned off, Clark again

made a statement concerning his involvement in the

robbery and murder at the Arco gas station. When Clark

was asked to reduce the statement to writing, he requested

an attorney and Jones’ questioning ceased. Detective

Reeves testitiea to the substance of Clark’s fourth state-

ment at trial.

before | make a statement, and also | wish to give up and do without having

a lawyer present with me during the time when questions are asked me and

during the time when | answer those questions. | am willing to make the

following statement to the above person, knowing that any statement |

make may be used against me in Court and that | have an absolute right to

remain silent.

| declare that the following statement is made of my own free will and

without anyone having promised me anything or offered out to me any hope

of reward, and | make this statement without any fear of physical harm,

without anyone having offered to do me any favor and without anyone

Promising me leniency.

| further state that | am able to read and write the English language and have

completed...... years of school.

SIGNED /s/ Jimmy Clark

WITNESSES /s/ Sgt. Clifford J. Collins

/s/ Det. Laurence M. Reeves

There was some testimony that Clark first attempted to sign the form with

his left hand.

In addition to the above testimony, the trial court

had before it evidence that Clark had been given the

Miranda warnings on prior arrests. Moreover, in response

to the trial court’s question concerning why Clark had

asked for an attorney, Clark responded: ‘Because | knew

if | said—say anything it could be held against me, like—|

guess they ‘eally wanted me to have no lawyer at the

time.”

As noted above, Clark made a total! of four separate

incriminating statements to the Willoughby police.

Following a hearing on the defendant’s motion to suppress,

the trial court suppressed the second and third statements

and held that the first and fourth statements were

admissible at trial. The state trial court made no express

findings of fact; nor did the court articulate what precise

legal standard of waiver it was employing in analyzing the

relevant facts. Moreover, there was no express finding by

the state trial court that Clark’s statements were made

knowingly and voluntarily with an understanding of the

rights thereby waived. The state trial court ruled as

follows:

Upon the Defendant’s Motion to Suppress

Statements made by him on four separate

occasions to members of the Willoughby Police

Department, as | previously stated, those state-

ments made by him to Detective Eisele on the

third floor of the Cleveland Police Station are

suppressed. Those statements made by him to

Detective Collins, and at the time | am speaking

of, Detective Reeves and Detective Eisele might

have been present, at the scene of the alleged

crime, are suppressed. As to the remaining two

instances, the first instance being on the fourth

floor of the Cleveland Police Station, specifically

in the sargent’s [sic] office, the motion is denied;

the second instance being in the Willoughby

Police Department when Prosecutor Pat Jones

was present; that motion is denied.

The opinion of the Court of Appeals of Lake County

contains the following statement:

[T)he record discloses that appellant gave the

statements voluntarily after having been advised

of his rights. Appellant’s willingness to give an

oral statement but not a taped or written state-

ment is attributable to his desire to bargain for a

reduced charge.

in ruling on the petition for habeas corpus, the district

court attempted to reconstruct the facts found by the

state courts:

Although the trial court did not explicitly set

forth its reasons for suppressing two of the state-

ments and denying the motion to suppress the

other two, it is apparent from the testimony that

the two middie statements were suppressed by

reason of petitioner’s earlier request for an

attorney, made initially after his first oral state-

ment at the Cleveland police station. It is also

apparent from the testimony that the court denied

the motion to suppress the first oral statement on

the basis that he had initially waived his Miranda

rights and did not request an attorney until! after

his oral statement. It is equally apparent that the

fourth oral statement, made in Willoughby, Ohio,

on the afternoon of the same day, was not

suppressed, despite earlier requests for an

attorney, because that statement resulted from

petitioner initiating the conversation by

voluntarily stating he wanted to cooperate and

make a statement, rather than from petitioner

being prodded to make a statement by the police.

This Court must first consider the relationship

between the federal court’s review of the factual record

and the findings by the state courts.14 Under normal

14. 280U.S.C. Section 2254(d) provides in pertinent part as follows:

(d) In any preceeding instituted in a Federal Court by an application

for a writ of habeas corpus by a person in custody pursuant to the judgment

of a State court, a determination after a hearing on the merits of a factual

issue, made by a State court of competent jurisdiction in a proceeding to

which the applicant for the writ and the State or an officer or agent thereof

were parties, evidenced by a written finding, written opinion, or other

reliable and adequate written indicia, shal! be presumed to be correct, unless

the applicant shal! establish or it shal! otherwise appear, or the respondent

shal! admit—

(1) tat the merits of the factual dispute were not resolved in the

State court hearing;

(2) that the factfinding procedure employed by the State court wes

not adequate to afford a full and fair hearing;

(3) that the material facts were not aoequately developed at the State

court hearing;

(4) that the State court lacked jurisdiction of the subject matter or

over the person of the applicant in the State court proceeding;

(5) that the applicant was an indigent and the State ccurt, in depriva-

tion of his constitutional right, failed to appoint counsel to represent him ir

the State court proceeding;

(6) that the appi.cant did not receive a full, fair, and adequate hearing

in the State court proceeding; or

(7) that the applicant was otherwise denied due process of law in the

State court proceeding:

(8) or unless that part of the record of the State court proceeding in

which the determination of such factual issue was made, pertinent to a

determination of the sufficiency of the evidence to support such factual

determination, is produced as provided for hereinafter, and the Federal court

on a consideration of such part of the record as a whole concludes that such

factual determination is not fairly supported by the record:

ircumstances, the findings of the state courts'5 are

titled to a presumption of correctness and therefore

nsiderable defences. The difficulty for the district

rt below and for this Court on review is the total

nce of fact finding. The absence of fact finding by

e state courts may require fact finding by the District

urt.

In Elliott v. Morford, 557 F.2d 1228 (6th Cir.

977), this Court was faced with a problem similar to this

. Elliott had been tried and convicted in the Tennessee

te courts for the murder of a store proprietor. Prior

his trial, Elliott filed a motion to suppress his oral

confession. Following a hearing, the trial judge denied

the motion to suppress but made no findings of fact to

resolve the conflict of testimony. After his conviction,

Elliott sought habeas relief. Citing 28 U.S.C. Section

And in an evidentiary hearing in the proceeding in the Federal Court, when

due proof of such factual determination has been made, unless the existence

of one or more of the circumstances respectively set forth in paragraphs

numbered (1) to (7), inclusive, is shown by the applicant, otherwise appears,

or is admitted by the respondent, or unless the court concludes pursuant

the provisions of paragraph numbered (8) that the record in the State cou

proceeding, considered as a whole, does not fairly support such fact

determination, the burden shal! rest upon the applicant to establish

convincing evidence that the factual determination by the State court

erroneous.

15. The Supreme Court recently explained in Sumner v. Mata, 449 U.4.

539 (1981) that the federal habeas court must defer under Section 2254(

to the factual findings not only of the state trial court, but also to

factual findings of state appellate courts. The state appellate court's findi

of voluntariness in this case was not a finding of historical fact binding

Court under Section 2254(d), but was, instead, a determination of an

of federal law. Brewer v. Williams, 430 U.S. 387, 403 (1977). Secti

2254(d) does not preclude + fecera! court from reviewing “a mixed

mination of law and fact thet requires the application of legal principles

the historical facts of this case.’ Cuyler v. Sullivan, 446 U.S. 335,

(1980).

2254(d), the district court concluded that the state

court’s decision was presumed to be correct and that an

evidentiary hearing was therefore not required. The Sixth

Circuit concluded that the absence of fact finding by the

state courts required remand for a hearing in the District

Court.

The Fifth Circuit approach to this problem was

recently explained in Harris v. Oliver, 645 F.2d 327,

330 (5th Cir. 1981).

If purely historical facts are found which are

uncontaminated by legal error, the federal court

may rely on such state findings. Even if no

express findings are made it may still be possible

for the federal court to rely on facts impliedly

found provided that the constitutional claim was

decided on the merits. Townsend [v. Sain, 327

U.S. 293 (1963)] recognizes, however, that this

inference of factual findings is impossible where

the state court has used an incorrect legal

standard:

Reconstruction is not possible if it is unclear

whether the state finder applied correct consti-

tutional standards in disposing of the claim.

Under such circumstances the District Court

cannot ascertain whether the state court found

the law or the facts adversely to the petitioner's

contentions. Since the decision of the state

trier of fact may rest upon an error of law

rather than an adverse determination of the

facts, a hearing is compelled to ascertain the

facts. 372 U.S. at 314.

Of course, under Rogers v. Richmond, [365

U.S. 534, 81S.Ct. 735, 5 L.Ed.2d 760 (1961)),

a new trial is required if the trial judge or the

jury, in finding the facts, has been guided by an

erroneous standard of law. However, there will

be situations in which statements of the trier

of fact will do no more than create doubt as to

whether the correct standard has been applied.

In such situations a District Court hearing to

determine the constitutional issue will be

necessary .

/d. at 3150.10.

In this case, the state courts apparently applied a

voluntariness standard in addressing Clark's contentions

under both the Fifth and the Sixth Amendments. As

noted above, the state trial court never expressly articu-

lated what legal standard it was using, but the state

appellate court found that the statement was voluntarily

made.

We believe the state court’s apparent use of a

voluntariness standard, without more, creates doubt as

to whether the trial court correctly utilized the legal

standards for waiver of constitutional rights under the

Fifth and Sixth Amendments. In Edwards v. Arizona,

451 U.S. 477 (1981), the Court was called upon to

determine whether a detendant had waived his Fifth

Amendment right to the presence of counsel. The

Court explained:

First, the Arizona Supreme Corut applied an

erroneous standard for determining waiver where

the accused has specifically invoked his right to

counsel. it is reasonably clear under our cases

that weivers of counsel must not only be

voluntary, but must also constitute a knowing

and intelligent relinquishment or abandonment of

a known right or privilege, a matter which

depends in each case “upon the particular facts

and circumstances surrounding that case, including

the background, experience and conduct of the

accused."’ Johnson v. Zerbst, 304 U.S. 458, 464

(1938). See Faretta v. California, 422 U.S. 806,

835 (1975); North Carolina v. Butler, 411 U.S.

369, 374-375 (1979); Brewer v. Williams, 430

U.S. 387, 404 (1977); Fare v. Michael C., 442

U.S. 707, 724-725 (1979).

Considering the proceedings in the state

courts in the light of this standard, we note that

in denying petitioner’s motion to suppress, the

trial court found the admission to have been

“voluntary,” App. 3, 95, without separately

focusing on whether Edwards had knowingly and

intelligently relinquished his right to counsel.

Here, however sound the conclus‘on of the state

courts as to the voluntariness of Edwards’ admis-

sion may be, neither the trial court nor the

Arizona Supreme Court undertook to focus on

whether Edwards understood his right to counsel

and intelligently and knowingly relinquished it.

It is thus apparent that the decision below mis-

understood the requirement for finding a valid

waiver of the right to counsel, once invoked.

Id. at 482-84.

In the case at bar, we cannot glean from the silent state

court record whether the trial court believed or disbelieved

Clark’s assertion that he had requested an attorney when

first questioned by the police. If Clark did make such a

request, Edwards requires that court to focus on whether

Clark “understood his right to counsel and intelligently

and knowingly relinquished it."’ /d.

Clark also contends that his Sixth Amendment right

to counsel had accrued. None of the courts below have

considered this claim. If Clark’s right to counsel had

accrued'® at the time of his first statement to police,

waiver of that right must be judged by a high standard.

The Supreme Court in Brewer v. Williams, 430 U.S. 387,

404 (1977) stated:

(I]t was incumbent upon the State to prove “an

intentional relinquishment or abandonment of a

known right or privilege.’’ Johnson v. Zerbst, 304

U.S., at 464. That standard has been reiterated

in many cases. We have said that the right to

counsel does not depend upon a request by the

defendant, Carniey v. Cochran, 369 U.S. 506,

513; cf. Miranda v. Arizona, 384 U.S., at 471, and

that courts indulge in every reasonable presump-

16. In view of the lack of fact finding pertinent to the question of whether

Clark had been formally charged within the meaning of Kirby v. //linois,

406 U.S. 682 (1972), we intimate no view on this issue. This Court has not

yet decided what constitutes a formal charge. In Holland v. Perini, 512 F.2d

99, 103 n.1 (6th Cir. 1975), the Court expressly reserved the question of

whether an arrest warrant was sufficient to trigger the Sixth Amendment

right to counsel. Other courts have reached different conclusions on this

question. United States, ex rel. Robinson v. Zelker, 468 F.2d 159 (2d Cir.

1972), cert. denied, 411 U.S. 939 (1973) (issuance of arrest warrant under

New York law is sufficient to trigger Sixth Amendment right to counsel);

cf. United States v. Duvall, 537 F.2d 15 (2d Cir. 1976) (filing of complaint

pursuant to Fed. R. Crim. P. 3 and arrest warrant does not trigger Sixth

Amendment right to counsel); United States, ex rel. Burton v. Cuyler, 439

F. Supp. 1173 (E.D. Pa. 1977) (citing Ze/ker, supra, issuance of arrest

warrant under Pennsylvania law is sufficient to trigger Sixth Amendment

right to counsel); cf. Lomax v. Alabama, 629 F.2d 413, 416 (5\h Cir. 1980)

(issuance of an arrest warrant under Alabama law, absent significant

Prosecutoriai involvement in procuring the warrant, is not sufficient to

trigger the Sixth Amendment right to counsel). The record in this case does

suggest some prosecutoria! invoivement in obtaining the arrest warrant on

the aggraveted murder charge. Tr. Vol. |, p. 24. The record before us,

however, does not reflect precisely what prosecutorial involvement occurred

Prior to obtaining the arrest warrant. in order to properly address Clark's

Sixth Amendment claim, the District Court may need to hear further

evidence on the level of prosecutorial involvement in obtaining Clark's arrest

werrant.

tion against waiver, e.g., Brookhart v. Janis, supra,

at 4; Glasser v. United States, 315 U.S. 60, 70.

This strict standard applies equally to an alleged

waiver of the right to counsel whether at trial or

at a critical stage of pre-trial proceedings.

Schneckloth v. Bustamonte, 412 U.S. 218, 238-

240; United States v. Wade, 388 U.S. at 237.

Elaborating on this standard of waiver, the Brewer court

further explained, “’[WJaiver requires not merely compre-

hension but relinquishment...."" /d.

In short, the state court’s use of a voluntariness

standard raises doubt concerning the application of

correct legal standards. We therefore conclude consistent

with the Fifth Circuit's analysis in Harris v. Oliver, supra,

at 330, that reconstruction of the facts found by the

state courts is impossible and that an evidentiary hearing

in the district court is required. This approach is consistent

with the Supreme Court's seminal decision in Townsend

v. Sain, 372 U.S. 293, 315 (1963): “[T)here will be

situations in which statements of the trier of fact will do

no more than create doubt as to whether the correct

standard has been applied. In such situations a District

Court hearing to determine the constitutional issue will

be necessary.” See a/so Pierce v. Cardwell, 572 F.2d

1339 (9th Cir. 1978).

We fully recognize the principles of comity reflected

in the habeas court’s obligation to reconstruct the facts

impliedly found by the state courts, where such reconstruc-

tion is reasonable. We are firmly convinced, however, that

on the record before us such reconstruction would be

pure speculation. Our jealous respect for important

constitutional rights may not be premised on a system of

speculative fact finding particularly where, as here, subtle

nuances in the facts can have such far-reaching effects.

Because this case must be remanded to the District

Court for fact finding, we believe it is expedient to

identify other factual issues warranting consideration.

When Clark was first questioned by Cleveland police re-

garding the Cleveland robbery on December 13, 1975,

he asserted his right to remain silent under Miranda,

supra. The Cleveland officers, Tonne and Gibbons, left

the room and Clark was returned to his cell. Very soon

thereafter, upon learning that Willoughby police had a

warrant for a.gravated murder for Clark, the Cleveland

officers retrieved Clark from his cell and brought him

back to the room for futher questioning. An issue some-

what similar to that before the Supreme Court in Michigan

v. Mosley, 423 U.S. 96 (1975), is presented. In Mos/ey,

the defendant was arrested in connection with certain

robberies, was given Miranda warnings, and elected to

remain silent. The police ceased questioning. Over two

hours later, a different police officer questioned Mosley

at another location about an unrelated holdup murder.

He was given fresh Miranda warnings and elected to make

a statement. The Supreme Court held that the admission

of Mosley’s statement did not violate his Miranda right to

cut off questioning. In this case, the district Court on

remand should consider the effect, if any, of the relatively

short period of time between the cessation of _:e first

questioning and the second meeting with the same

Cleveland police officers, albeit concerning different

charges. The District Court should also consider other

factual distinctions between this case and Mos/ey. More-

over, in the event Clark did invoke his right to remain

silent, was his oral statement made thereafter of his own

initiative, or was he interrogated? See Ahode /siand v.

Innis, 446 U.S. 291 (1980). We emphasize that we initi-

mate no view concerning the significance of these factors

on the District Court’s determination on remand.

Although we believe the proper determination of

the admissibility of the first statement is a key threshold

decision, even if it is deemed to have been unconstitu-

tionally obtained, Cilark’s fourth statement may be

admissible under certain c.rcumstances. If the District

Court finds that the fourth statement was a product of

Clark's initiative and given without interrogation, it may

be admissible. See Edwards v. Arizona, supra. However,

the psychological effect, if any, on Clark after having

made the first statement also is significant in determining

the lawfulness of the fourth statement. After an accuse j

has let the cat out of the bag by confession, no matter

what the inducement, he may not thereafter be free of

the psychological and practical disadvantages of having

confessed. United States v. Bayer, 331 U.S. 532, 540-

541 (1947); Maglio v. Jago, 580 F.2d 202 (6th Cir.

1978).

On remand, the District Court must also consider

the impact, if any, of the police course of conduct

throughout the day prior to Clark’s alleged initiation of

the fourth statement to police. Finally, the District Court

should consider the appellant’s age, education, mental

state, and all other well-known criteria relevant to the

determination of intent and volition to waive constitu-

tional rights. Fare v. Michael C., 442 U.S. 707, 724-

725 (1979); Johnson v. Zerbst, 304 U.S. 458, 464

(1938).

There is, of course, evidence in the record which

may lead the district Court to the conclusion that waiver

of both the Sixth Amendment right to counsel and

Miranda rights was established. Clark's refusal to sign a

written waiver does not preclude a finding of waiver.

North Carolina v. Butler, 441 U.S. 369, 375 n.5 (1979)

(and cases cited therein).

We remand this case with reluctance with full

respeci for our obligation to deter to the findings of the

state courts. On this record, however, there are simply

no findings to which we can defer and substantial

uncertainty that the correct legal standards were used.

Moreover, neither the state courts nor the court below

have expressly considered whether the appellant’s Sixth

Amendment right to counsel had accrued.

lll. The Double Jeopardy Claim

Appellant’s final claim is that his right to be free

from double jeopardy under the Fourteenth Amendment

has been violated by his consecutive sentences on the

aggravated robbery and aggravated murder convictions.

Clark was sentenced to a term of life imprisonment for

the crime of aggravated murder and to a term of from

seven (7) to twenty-five (25) years imprisonment for the

crime of aggravated robbery. He contends that this

amounts to multiple punishment for the same crime.

In view of the Court's disposition of the appellant's

claim concerning the aggravated murder conviction, the

appellant may not be incarcerated on the aggravated

murder conviction unless the state elects to retry him.

Appellant’s claim of douhle jeopardy is therefore moot.

If petitioner is convicted again on the aggravated murder

charge, the state court will have an opportunity to

consider appellant’s double jeopardy claim in light of

Whalen v. United States, 445 U.S. 684 (1980) prior to

sentencing. We intimate no view on the merits of

appellant’s double jeopardy claim.

CONCLUSION

The District Court is directed to order that Clark be

released from custody on the aggravated murder convic-

tion unless Ohio chooses to retry him within a reasonable

time to be determined by the District Court.

Clark is also in custody on his conviction for aggra-

vated robbery. The District Court is directed to hold an

evidentiary hearing on the question of whether appellant’s

statements to police were constitutionally admissible.

Clark will remain incarcerated during the period of the

evidentiary hearing pending the District Court’s decision.

if Clark’s statements to police were not constitutionally

admissible, the District Court must grant the writ as to

the aggravated robbery conviction as well.

Accordingly, the judgment of the District Court is

reversed and the case is remanded.

No. 81-3042

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JIMMY LEE CLARK,

Plaintiff-Appellant

ARNOLD R. JAGO,

Defendant-Appellee

ORDER

FILED September 13, 1982

Before: KEITH and MARTIN, Circuit Judges; DUCAN,

District Judge. *

Appellant has moved the court for a rehearing of the

above-captioned appeal, with a suggestion for rehearing

en banc. No jidge in active service having favored a

rehearing en banc, the motion is referred to the panel

which heard the appeal.

Upon consideration of the petition for rehearing, we

are of the opinion that the various contentions of the

appellee were adequately treated in our previous Order,

and that said petition for rehearing should be and it here-

by is denied.

ENTERED BY ORDER OF THE COURT

/s/ John P. Hehman, Clerk

*The Honorable Robert M. Duncan, United States District Judge for the

Southern District of Ohio, sitting by designation.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

Jimmy Lee Clark

Petitioner

Ronald C. Marshall, etc.

Respondent

Civil Action

Number C80-110

ORDER

FILED December 10, 1980

The court has examined the report and recommended

decision of the magistrate submitted in this case. No

comment having been received thereon, upon due con-

sideration the court adopts the magistrate’s recommended

findings and conclusions, therefore,

IT 1S ORDERED that the petition for a writ of

habeas corpus is hereby denied.

/s/ signature deleted

ANN ALDRICH, U.S. DISTRICT JUDGE

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

JIMMY LEE CLARK,

Petitioner,

RONALD C. MARSHALL,

SUPERINTENDENT,

Respondent

CASE NO. C80-110

JUDGE ANN ALDRICH

REPORT AND RECOMMENDED

DECISION OF MAGISTRATE

STREEPY, MAG.

Mr. Jimmy Lee Clark, petitioner herein, was tried

and found guilty on March 22, 1976, of aggravated

murder, with a death penalty specification, in violation of

Ohio Rev. Code Section 2903.01, and of aggravated

robbery in violation of Ohio Rev. Code Section 2911.01.

On May 19, 1976, he was sentenced to a term of life

imprisonment for the aggravated murder and to a term

of seven to twenty-five years imprisonment for the

aggravated robbery, with the sentences to be served

consecutively. Mr. Clark’s appeal to the Court of Appeals

and to the Ohio Supreme Court was unsuccessful.

The basic details concerning the aggravated robbery

and murder were set forth by the Ohio Supreme Court

in State v. Clark, 55 Ohio St.2d 257, 257-258 (1978),

cert. denied 440 U.S. 950 as follows:

On the morning of December 7, 1975,

appellant, Jimmy Lee Clark, and a com-

panion, Willie Jones, drove from Cuyahoga

County to a gas station located just off

Interstate 90 in Lake County. Upon their

arrival the two men entered the gas

station and confronted the attendant,

Joseph H. Bradshaw, who was sitting on a

stool in the front office. When Jones

produced a handgun, Bradshaw reached

into his pocket and gave Jones his money.

Appellant and Jones then ordered Brad-

shaw back into the bay area of the gas

station, where Bradshaw was made to lie

on the floor while his coin changer and

wallet were removed. Thereafter, appel-

lant went into a back room and removed

some coins from a money box. Following

this, Jones marched Bradshaw into the

back room, from which appellant heard

the sound of two gunshots as he was

exiting the back room. Appellant and

Jones then departed in their vehicle, and

soon afterward Bradshaw was discovered

lying dead, face down in the back room,

with bullet wounds in the head and neck.

Mr. Clark has alleged three grounds in his petition.

Respondent does not contend he has failed to exhaust

state remedies with reference to the first two grounds,

but has raised a related issue with reference to the third

ground, which issue will be considered when that ground

is discussed.

‘

Peitioner contends his right to due process was

violated by reason of the jury instructions in his case.

Petitioner bases his claim upon the following portion of

the instructions (Transcript, Vol. 4, pp. 390-391):

It must be established in this case that at

the time in question there was present in

the mind of the defendant and/or his

accomplice a specific intention to cause

the death of Joseph H. Bradshaw, Jr.

Petitioner contends this instruction made it possible to

convict him on no evidence that he possessed a purpose

to kill since it allegedly informed the jury that it was

sufficient if the accomplice had a purpose to kill.

The Due Process Clause protects the accused against

conviction except upon proof beyond a reasonable doubt

of every fact necessary to constitute the crime with

which he is charged; Sandstrom v. Montana, U.S.

47 U.S.L.W. 4719 (1979); /n re Winship, 397 U.S.

358 (1970). An essential element of the crime of aggra-

vated murder in Ohio is an intent or purpose to kill,

State v. Clark, supra; State v. Lockett, 49 Ohio St.2d 48

(1976), aff'd on other grounds, 438 U.S. 586 (1978).

Accordingly, due process required that the court instruct

the jury that to convict Mr. Clark of aggravated murder it

must, among other elements, find that he possessed an

intention or purpose to kill. In determining whether the

jury was correctly instructed as to the element of purpose

a single instruction to the jury may not be judged in

artifical isolation, rather it must be viewed within the

context of the overall charge, Cupp v. Naughten, 414

U.S. 141 (1973).

During the course of its instructions the court

informed the jury that petitioner was presumed to be

innocent (T, Vol. 4, p. 383). The court subsequently

instructed the jury (T 390):

Before you can fina the Defendant guilty

of aggravated murder you must find

beyond a reasonable doubt that Joseph

Bradshaw, Jr. was a living person; that his

death was caused by the Defendant in

Lake County, Ohio on or about the 7th

day of December, 1975; that the killing

was done purposely and that the killing

was done while the Defendant was com-

mitting aggravated robbery.

The court then defined purpose, wherein was

inserted the sentence emphasized herein by the petitioner

(T 390-391). The court then defined an accomplice and

further noted in part that, ‘When two persons have a

common purpose to commit a crime and one does one

part and a second performs another, those acting together

are equally guilty of the crime.” (T 391). The court

quoted Ohio Rev. Code Section 2923.03 for the jury as

follows (/d.):

No person acting with the kind of cul-

pability required for the commission of an

offense shall do any of the following: Aid

or abet another in committing the offense.

The court then instructed (T 391):

Before you can find Jimmy Lee Clark

guilty of aggravated murder in the first

count of the indictment you must find

beyond a reasonable doubt that he aided,

abetted, assisted or encouraged another,

Willie Jones, to purposely cause the death

of Joe Bradshaw, Jr.

The charge of aggravated murder against petitioner

also had a specification that he committed the crime

while also committing aggravated robbery. The court

instructed the jury that the issue surrounding the specifi-

cation raised a separate question. As noted by the court

(T 394), ‘That separate question which you will be called

upon to decide is, did the Defendant, Jimmy Lee Clark,

purposely cause the death of Joseph Hiram Bradshaw, Jr.,

while committing aggravated robbery.” (T 393) The

court then informed the jury that a finding a guilty on

this question “must be proved beyond a reasonable

doubt” (/d.).

When the one sentence portion of the charge quoted

by petitioner is viewed in isolation use of the word “‘or”’

within the phrase “‘and/or’’ would potentially focus

attention of the jury only on whether petitioner's

accomplice had a purpose to kill. However, this sentence

was not prefaced by an instruction as to what elements

the state had to prove beyond a reasonable doubt. Con-

sideration of this isolated sentence within the context

of the overall instructions readily reveals that the jury

was instructed that it must find petitioner had the

purpose to kill if it was to find him guilty of aggravated

murder.

Petitioner also argues that the one sentence he

quoted created a presumption that he had the necessary

purpose or intent to kill, thus shifting the burden to him

to disprove same. The Fourteenth Amendment prohibits

a state from shifting to the defendant the burden of

disproving an element of the crime charged, Sandstrom,

supra; Mullaney v. Wilbur, 421 U.S. 684 (1975). How-

ever, the instructions do not contain language which

shifted the burden to the petitioner. Rather, petitioner's

argument is confined by the facts to whether the instruc-

tions properly informed the jury that it had to find be-

yond a reasonable doubt that petitioner had a purpose to

kill. As noted earlier, the instructions did so inform the

jury.

A-40

For his second ground petitioner contends his

conviction was based upon involuntary statements he

made to the police. Prior to trial petitioner filed a

motion to suppress any statements. The court conducted

an evidentiary hearing (see Transcript, Vols. 1 & 2),

found that petitioner made four oral statements, denied

the motion as to two of the statements, and ordered that

the other two be suppressed.

The first statement was made on the morning of

December 13, 1975, at the central police station in the

City of Cleveland (see Transcript, Vol. 3, pp. 249-254,

260-262). Petitioner’s fourth oral statement (the second

statement admitted into evidence) was made on the after-

noon of the same day in a police station in the City of

Willoughby, Ohio (Transcript, Vol. 3, pp. 263-265, 294-

296).

The testimony at the suppression hearing (that

testimony which was obviously credited by the court)

established that on the morning of December 13, after

being advised of his Miranda rights, petitioner waived his

rights and made an oral statement; however, when asked

to reduce his statement to writing he asked for an

attorney. The interrogation immediately ceased.

Subsequently petitioner was questioned on two

separate occasions, at which he gave further oral state-

ments. These statements were made later in the day on

December 13, and both were ordered suppressed.

Eventually petitioner was transferred from Cleveland

to Willoughby, Ohio, (where the murder had occurred)

for the purpose of processing. It had been agreed between

the respective police departments that he would then be

returned to the City of Cleveland, where he had initially

been arrested by Cleveland police officers in relation to

an unrelated charge.

After petitioner »was processed in Willoughby, Ohio,

the police made preparations to transport him back to

Cleveland. At this time the defendant, without being

asked any questions, voluntarily stated that he wished

to cooperate and make a further statement. He thereafter

signed a waiver of his Miranda rights (Transcript, Vol. 1,

Ex. 2). Moreover, a prosecuting attorney was called, who

advised him a second time of his Miranda rights (/d.,

Defendant’s Ex. A). A short preliminary conversation

between petitioner and the attorney was tape-recorded,

but at petitioner’s request it was turned off prior to

making any statement. Thereafter petitioner made an

oral statement, shortly after 3:30 p.m. on the afternoon

of December 13, 1975, to the Willoughby police officers

and prosecuting attorney. He was then asked if he would

agree to placing his oral statement on tape or in writing,

to which he responded in the negative and stated he

desired an attorney. At that time the questioning ceased

and the prosecuting attorney made the necessary arrange-

ments to obtain a defense attorney.

Although the trial court did not explicitly set forth

its reasons for suppressing two of the statements and

denying the motion to suppress the other two, it is

apparent from the testimony that the two middle state-

ments were suppressed by reason of petitioner’s eariier

request for an attorney, made initially after his first oral

statement at the Cleveland police station. It is also

apparent from the testimony that the court denied the

motion to suppress the first oral statement on the basis

that the had initially wa'ved his Miranda rights and did

not request an attorney until after his oral statement. It

is equally apparent that the fourth oral statement, made

in Willoughby, Ohio, on the afternoon of the same day,

was not suppressed, despite earlier requests for an

attorney, because that statement resulted from petitioner

initiating the conversation by voluntarily stating he

wanted to cooperate and make a statement, rather than

from petitioner being prodded to make a statement by

the police.

Petitioner is essentially restating allegations made

in his state court motion to suppress. The state court

hearing satisfied the Due Process Clause requirements

set forth in Jackson v. Denno, 378 U.S. 368 (1964).

Petitioner was represented by counsel throughout the

hearing on his motion to suppress. He was able to testify

on his own behalf, and no restraints were placed on the

subject matter of his testimony.

Based upon the evidence and the rulings at the

state hearing, the fact petitioner refused to have his

initial oral statement taped or reduced to writing until

after talking to an attorney did not negate the voluntari-

ness of his earlier oral statement, see Harris v. Riddle, 551

F.2d 936 (4th Cir. 1977), cert. denied 434 U.S. 849;

Hill v. Whealon, 490 F.2d 629 (6th Cir. 1974). Under

these circumstances his first oral statement was voluntarily

made.

The second oral statement, made at the Willoughby,

Ohio, police station in the afternoon of the same day,

requires separate analysis. The right to have an attorney

present during questioning is central to Fifth Amendment

protection. Once the accused requests an attorney the

state bears a heavy burden to show that the subsequently

waived his right to the presence of an attorney, Mag/io

v. Jago, 580 F.2d 202 (6th Cir. 1978); United States v.

Nixon, 571 F.2d 1121 (9th Cir. 1978). Indeed, Mag/io,

supra, indicates that the Supreme Court has strongly sug-

gested a per se rule barring custodial interrogation of a

suspect after a request for counsel has been made; how-

ever, Maglio did not actually reach the issue of whether

a per se rule is required. Other courts which have reached

that issue have overwhelmingly held there is no per se

rule, see White v. Finkbeiner, 611 F.2d 186, 192 (7th

Cir. 1979), and cases cited therein.

The general test for a waiver of an individual's

constitutional rights is whether the government has

shown an intential relinquishment or abandonment of a

known right or privilege, White. The factors which courts

have considered to determine whether a prior request for

counsel has been subsequently waived are the accused's

background, experience, and conduct; whether the

accused initiated the contact which led to the statement

being made; the time delay between the original request

for an attorney and subsequent interrogation; and the

general circumstances surrounding the subsequent waiver,

see White; Maglio, supra.

In the instant case it was the petitioner who initiated

further communication with the police. His Miranda

rights were reexplained, and he then signed a written

waiver. He was informed of his Miranda rights still

another time, by a prosecuting attorney, prior to making

his oral statement. The prosecuting attorney suggested

that prior to making a statement the petitioner “think

about it” for awhile (Transcript, Vol. 1, Defendant's

Ex. A). What occurred in petitioner’s case comes close

to the following comment in Maglio, supra, at p. 206:

If the police had reexplained Maglio’s

rights and then withdrawn, allowing the

boy to consider his alternatives, and he

had then initiated further communication

with the police, we would be able to find

a waiver....

Considering all the circumstances, most notably the fact

that petitionier initiated the communication with the

Willoughby police, his oral statement was made

voluntarily.

Even assuming that admission of the second oral

statement was constitutional error, there was otherwise

such overwhelming evidence of guilt (particularly his first

oral statement, which was substantially the same as the

second) to render admission of the second statement

harmless error, see Milton v. Wainwright, 407 U.S. 371

(1972).

Petitioner’s third ground is that his consecutive

sentences for aggravated murder and aggravated robbery

violate his right against double jeopardy. Petitioner did

not raise this issue in his state court appeal. Respondent

contends that he is thus barred from presenting this issue

in a petition for a writ of habeas corpus, citing Wainwright

v. Sykes, 433 U.S. 72 (1977) and Francis v. Henderson,

425 U.S. 536 (1976). In Keener v. Ridenour, 594 F.2d

581 (6th Cir. 1979) it was noted that if the state can

show a prisoner “deliberately bypassed’’ state remedies

or is precluded from raising his claim through “‘inexcusable

procedural default’’ of a state rule or provision, federal

habeas corpus relief is precluded, citing, among others,

Wainwright, supra and Francis, supra. Apparently the

state in Keener, supra, failed to make the necessary show-

ing since Keener ruled that the petitioner therein had

exhausted state remedies. in the instant case respondent

has also failed to make any showing. Petitioner has ex-

hausted his state remedies as to this issue.

Consideration of the issue on its merits demonstrates

that it borders on the frivolous. Double jeopardy is

involved only where there has been either multiple

punishment for the same offense or successive prosecu-

tions for the same offense, see United States v. Wilson,

420 U.S. 332 (1974); North Carolina v. Pearce, 395 U.S.

711 (1969). Successive prosecutions of either the same

or different offenses are not involved herein, since

petitioner was prosecuted only once for the crimes of

aggravated robbery and aggravated murder. His consecu-

tive sentences for the two crimes did not represent

multiple punishment for the same offense since the

elements of aggravated murder under Ohio Rev. Code

Section 2903.01(B) are not the same as the elements of

aggravated robbery pursuant to Ohio Rev. Code Section

2911.01, thus they are not the same offense. Among

other elements, aggravated murder requires proof that an

individual was purposely killed by the accused. These

elements are not present in aggravated robbery.

RECOMMENDATION

it is recommended that the petition for a writ of

habeas corpus be denied.

Dated: Ocrober 30,1980 /s/ signature deleted

Jack B. Streepy

United States Magistrate

55 Ohio St.2d) STATE v. CLARK. 257

Statement of the Case.

THE STATE OF OHIO, APPELLEE,

v. CLARK, APPELLANT.

[Cite as State v. Clark (1978), 55 Ohio St.2d 257.)

Criminal law—Aggravated murder—During commission of

armed robbery—Purposeful intent to kill—Estab-

lished, how.

Where the record in a prosecution for aggravated murder

committed during the commission of an armed rob-

bery established that the participants in the offense

entered into a common design to commit the armed

robbery by the use of force, violence and a deadly

weapon and all the participants were aware that an

inherently dangerous instrumentality was to be em-

ployed to accomplish the felonious purpose, a

homicide occurring during the commission of the

felony is a natural and probable consequence of the

common plan which must be presumed to have

been intended, and such evidence is sufficient to

allow a jury to find a purposeful intent to kill.

(Paragraph three of the syllabus in State v. Lockett,

49 Ohio St.2d 48, approved and followed.)

(No. 77-909—Decided August 16, 1978.)

APPEAL from the Court of Appeals for Lake County.

On the morning of December 7, 1975, appellant,

Jimmy Lee Clark, and a companion, Willie Jones, drove

from Cuyahoga County to a gas station located just off

Interstate 90 in Lake County. Upon their arrival the two

men entered the gas station and confronted the attendant,

Joseph H. Bradshaw, who was sitting on a stool in the

front office. When Jones produced a handgun, Bradshaw

reached into his pocket and gave Jones his money. Appel-

lant and Jones then ordered Bradshaw back into the bay

area of the gas station, where Bradshaw was made to lie

on the floor while his coin changer and wallet were re-

moved. Thereafter, appellant went into a back room and

removed some coins from a money box. Following this,

Jones marched Bradshaw into the back room, from which

appellant heard the sound of two gunshots as he was exit-

ing the back room. Appellant and Jones then departed in

their vehicle, and soon afterward Bradshaw was discover-

ed lying dead, face down in the back room, with bullet

wounds in the head and neck.

On December 31, 1975, the Lake County Grand

Jury returned an indictment charging both appellant and

Jones with one count of aggravated murder with a specifi-

cation, and with one count of aggravated robbery. After a

series of pre-trial motions appellant's trial began on

March 9, 1976. The jury returned a verdict of guilty on

all charges on March 22, 1976.

A mitigation hearing was held on May 19, 1976, at

the close of which the court found that a mitigating cir-

cumstance had been established. Appellant was there-

upon sentenced to life imprisonment on the first count

and 7 to 25 years on the second count, with the two

terms to run consecutively.

On appeal, the Court of Appeals affirmed the trial

court’s judgment.

The cause is now before this court pursuant to the

allowance of a motion for leave to appeal.

Mr. John E. Shoop, prosecuting attorney, Mr. David

L. Lavinder and Mr. Gregory C. Sasse, for appellee.

A-48

Mr. Albert L. Purola and Mr. John Winthrop Ours,

for appellant.

CELEBREZZE, J. Appellant does not deny that he

aided and abetted an aggravated robbery, but contests his

conviction for the crime of aggravated murder, with the

specification that the crime was committed during the

commission of an aggravated robbery.

In order to comprehend the foundation of appel-

lant’s argument three statutes must be examined, the “irst

of which, R. C. 2903.01(B), is the aggravated murder

statute under which appellant was charged as an aider and

abettor. This section provides:

“No person shall purposely cause the death of

another while committing or attempting to commit, or

while fleeing immediately after committign or attempting

to commit kidnapping, rape, aggravated arson or arson,

aggravated robbery or robbery, aggravated burglary or

burglary or escape.” ~~

The second statute is the complicity section, R. C.

2923.03, which reads in pertinent part:

“(A) No person, acting with the kind of culpability

required for the commission of an offense, shall do any

of the following:

“* * >.

“(2) Aid or abet another in committing the

offense.”

The third statute is R. C. 2901.22(A), which defines

the culpable mental state of purpuse, as follows:

“A person acts purposely when it is his specific in-

tention to cause a certain resu!t, or, when the gist of the

offense is a prohibition against conduct of a certain

nature, regardless of what the offender intends to accom-

plish thereby, it is his specific intention to engage in

conduct of that nature.”

In view of the above-quoted sections appellant con-

tends that to convict him of the crime of aggravated mur-

der with the particular specification, it was necessary for

the state to prove that he possessed the specific intention

to kill, and that specific intent to kill may not be pre-

sumed as being the natural, reasonable and probable

consequence of engaging in an aggravated robbery.

Appellant’s position is in direct opposition to the

majority holding of this court in State v. Lockett (1976),

4S Ohio St. 2d 48, 58-62,* a case in which the facts were

parallel to the facts in the cause at bar. Our examination

of the record in the instant cause establishes that appel-

lant participated in the planning and commission of the

robbery, and also acquiesced in the employment of a

deadiy weapon to accomplish this crime. Under these

circumstances appellant must have realized that the

victim’s life would be endangered by the manner and

means of performing the act conspired, and accordingly,

appellant is bound by the consequences naturally result-

ing from the furtherance of the conspiracy to commit

the aggravated robbery. We therefore hold that the jury

had before it sufficient evidence from which to find that

appellant possessed a purposeful intent to kill.

The judgment of the Court of Appeals is hereby

affirmed.

Judgment affirmed.

HERBERT, P. BROWN, SWEENEY and LOCHER,

JJ., concur.

O'NEILL, C.J., and W. BROWN, J., concur in the

judgment with regard to the conviction for aggravated

robbery. State v. Lockett (1976), 49 Ohio St. 2d 48.

*This issue was not resolved by the United States Supreme Court in

its decision involving Lockett v. Ohio (1978), | 57 L. Ed. 973.

It is ordered that a special mandate issue out of this

Court directing the Trial Court to carry this judgment

into execution. A certified copy of this Entry shall con-

stitute the mandate pursuant to Rule 27 of the Rules of

Appellate Procedure. Exceptions.

/s/ ROBERT E. COOK

/s/ ALFRED E. DAHLING

/s/ EDWIN T. HOFSTETTER

Judges

OPINION OF THE COURT OF APPEALS OF

LAKE COUNTY, OHIO

(Dated May 31, 1977)

Case No. 6-017

COURT OF APPEALS OF OHIO

ELEVENTH DISTRICT

LAKE COUNTY

STATE OF OHIO,

Appellee,

JIMMIE LEE CLARK,

Appellant.

OPINION

DAHLING, J.

This is an appeal from a judgment of the Court of

Common Pleas of Lake County wherein after a trial by

jury the defendant was found guilty of Aggravated Murder

in violation of Section 2903.01 with specifications of

aggravated circumstances of Aggravated Robbery and the

defendant was found guilty of Aggravated Robbery in

violation of Section 2911.01. Defendant was sentenced

to life imprisonment for Aggravated Murder and to seven

to twenty-five years for Aggravated Robbery with the

time to be served consecutively.

The defendant-appellant has presented the follow-

ing Assignments of Error for review:

“1. The trial court erred in overruling the defen-

dant’s motion to cuppress evidenc directed at the

statements obtained at the Cleveland Police Station

and the Willoughby Police Station.

2. The verdict is against the weight of the evi-

dence and the judgment is contrary to law in that

the evidence is insufficient to sustain the conviction

of aggravated murder and the trial court erred in

denying the appellant’s motions for a judgment of

acquittal.

3. The trial court erred in charging the jury on

the law as it applies to complicity.

4. The trial court erred in denying the appellant's

motion to dismiss the indictment for aggravated mur-

der and the specification of an aggravating circum-

stance on the ground that the manner in which the

penalty is determined pursuant to Revised Code Sec-

tion 2929.03 has a chilling effect on the exercise of

the right to trial by jury.

5. The trial court erred in denying appellant's

motion to dismiss the specification of an aggravat-

ing circumstance and in denying appeliant’s motion

for a judgment of acquittal on the ground that a

specification of aggravated robbery is insufficient to

charge a capital offense where the principal offense

also is stated in terms of the same aggravated

robbery.”

These Assignments of Error are without merit.

The first Assignment of Error is that certain state-

ments of the defendant given at the Cleveland Police Sta-

tion and Willoughby Police Station should have been sup-

pressed. This Assignment of Error is without merit as the

Record discloses that appellant gave the statements vol-

untarily after having been advised of his rights. Appel-

lant’s willingness to give an oral statement but not a

taped or written statement is attributable to his desire to

bargain for a reduced charge.

The Brief of Mr. Gregory Sasse, Assistant Prosecut-

ing Attorney, succinctly summarized the appellant’s

motives and objectives in giving an oral statement:

“ae

Without actually knowing what rule he sought to

invoke he had probably become aware of technicali-

ties which he knew had freed obviously guilty men

and which had rationales which made no sense to

him, and he wanted to hold the option open that

he could benefit from such rule. Who is to say that

appellant was mistaken? He has succeeded in his

every objective. His accomplice has been caught,

the death penalty has been avoided, and he has a

shot at overturning his conviction which is based

entirely upon the fact that he refused to put his

statement on tape or in writing. To be sure, he may

have misunderstood the extent to which he weakened

his bargaining position by the making of his oral

statement and by the waiving of his right to counsel,

but then nobody is perfect.”

The second Assignment of Error is answered by

State v. Lockett, 43 Ohio St.2d 48 (1976) Syllabus 3 and

4, which state as follows:

“3. Where the record in a prosecution for aggra-

vated murder committed during the commission of

an armed robbery establishes that the participants in

the offense entered into a common design to commit

the armed robbery by the use of force, violence and

a deadly weapon and al! the participants were aware

that an inherently dangerous instrumentality was to

be employed to accomplish the felonious purpose, a

homicide occurring during the commission of the

felony is a natural and probable consequence of the

common plan which must be presumed to have been

intended, and such evidence is sufficient to allow a

jury to find a purposeful intent to kill.

4. if a conspired robbery, and the manner of its

accomplishment, would be reasonably likely to pro-

duce death, each person engaged in the common

design to commit the robbery is guilty with the

principal killer as an aider and abetter in the homi-

cide although not actually present at the time of the

homicide, and a purposeful intent to kill by the

aider and abetter may be found to exist beyond a

reasonable doubt under such circumstances.”

The third Assignment of Error is similar to the

second Assignment of Error Except that it concerns the

Trial Court’s “instructions to the jury” as it pertains to

complicity.

In addition to State v. Lockett, supra, see State v.

Doty, 94 Ohio St. 258 (1916) wherein the Court stated:

“Where. . .[an] unlawful act wes contemplated in

the original conspiracy, although not identical with

or similar to the criminal act charged, if the conspired

unlawful act and the manner of its performance

would be reasonably likely to produce death, each

conspirator is equally guilty with the principal

offender, as an aider and abetter in the homicide, al-

though such aider and abettor was neither present

nor had knowledge of the physical killing or of the

weapon used.”

We are of the opinion State v. Doty is still good law

and the Trial Court did not err in instructing the jury on

complicity.

The fourth Assignment of Error is that the manner

in which the penalty is determined in R.C. 2929.03 has a

chilling effect on the exercise of the right to trial by jury.

The appellant chose to havea jury trial and was sentenced

to life so this Assignment of Error is not pertinent to the

case sub judice. However, the Court in State v. Be//, 48

Ohio St.2d 270 (1976), responded to this issue in Para-

graph 1 of the Syllabus:

“A defendant is not coerced or impelled to waive his

constitutional right to a jury trial by R.C. 2909.03

[C] [1], [2], and [E], under the provisions of which

an offender who waives jury trial need persuade

only one member of the three-judge pane! at the

mitigation hearing to avoid imposition of the death

penalty.”

Appellant's final (fifth) Assignment of Error com-

plains that the indictment stated both the principal

offense and the specification of an aggravated circum-

stance in terms of the same aggravated robbery. Appel-

lant’s Reply Brief makes the astute observation that the

death penalty is not provided for the cold-blooded, lying-

in-wait killing. It can be argued that the lying-in-wait

killing is more heinous than an accomplice to an armed

robbery murder as in the instant case.

Also, the appellant makes the following commentary

to support this Assignment of Error:

“In this case and in every other indictment drawn

like it there is no legal or logical possibility of a not

guilty verdict on the specification since by the time

the jury reached that question under R.C. 2929.03

[B] they would have already satisfied themselves

beyond a reasonable doubt as to the factual issues

presented by the specification. If the principal

charge is robbery-murder and the specification is

robbery-murder, based on the same robbery as here,

by duplicating the same allegations and calling one a

principal charge and one a specification, the prose-

cuting attorney has turned an offense that when

written once is a life offense into a death offense by

writing it twice.

It is undeniable that no possibility exists for an

acquittal on the specification and that fact alone

rende. meaningless that part of the indictment.

What Ohio prosecutors have been unable to

fathom apparently is that robbery-murder cases are

no longer capital crimes all by themselves. The

popular consensus is that Ohio has retained the

death penalty for certain felony murders and that is

not the fact.”

The appellant was sentenced to life imprisonment so

the Motion to Dismiss the specification of the aggravated

circumstance was not prejudicial. In addition, we agree

with the foilowing summary from the Brief of Mr. Sasse:

“The crux of appellant's dissatisfaction lies with

the fact that in his case the proof of one event, to-

wit: the robbery, triggers two legal consequences,

one regarding liability for murder and one regarding

sentencing. Appellant is not entitied, as a matter

of law, to two factual determinations because there

is no right to an equal opportunity to escape punish-

ment for crimes which one has committed. There

is nothing inherently unjust in the situation where

one factual event brings about two legal results as

regards criminal liability. For example, if a 17 year

old and a 19 year old engage in petty theft, the 19

year old is also liable for contributing to the delin-

quency of a minor. Where the policy reasons appro-

priately fit the facts there is no injustice. A situation

which would be unjust and arbitrary would be

found if a lesser felony which is included in a homi-

cide could be used via the felony-murder rule to

elevate the homicide to the level of aggravated mur-

der. However, such is not the case since the law

requires that the elements of the felony differ from

those elements which are included in the homicide

charge for the felony-murder rule to apply.

In appellant’s case no injustice has resulted from

charging him with a specified aggravating circum-

stance of aggravated robbery when similar lanquage

was used in describing the principal charge.

The State of Ohio has followed the law and pro-

cedure 3s cutlined and as intended by the legislature

and should be required to do no more than that.”

For the foregoing reasons the Assignments of Error

of the appellant are found without merit and the judg-

ment is affirmed.

JUDGE ALFRED E. DAHLING

COOK, P.J.,

HOFSTETTER, J., Concur.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.