Petition for Writ of Certiorari — Tate v. Rose

83-1747 Gio

CASE NO. Pits.

In The APR 25 1984

Supreme Court of the Unitpi’ Statesres

OCTOBER TERM, 1983

ARTHUR TATE JR., Superintendent

Chillicothe Correctional Institute

Petitioner,

Vv.

CHARLES E. ROSE

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

ANTHONY J. CELEBREZZE, JR.

Attorney General of Ohio

RICHARD DAVID DRAKE

Assistant Attorney General

Counsel of Record

KAREN A. KOLMACIC

Assistant Attorney General

State Office Tower

30 East Broad Street, 26th Floor

Columbus, Ohio 43215

(614) 466-5414

ATTORNEYS FOR PETITIONER

QUESTION PRESENTED

WHETHER A STATE COURT CONVICTION

INVOLVING TWO WHOLLY EXCULPATORY

STATEMENTS OF UTILITY ONLY IN IMPEACHING

THE TRIAL TESTIMONY OF THE ACCUSED AND

MADE TWO AND ONE HALF YEARS PRIOR TO THE

DATE OF THE DECISION IN EDWARDS v. ARIZONA,

451 U.S. 477 (1981), CAN BE VACATED BY A

FEDERAL HABEAS CORPUS COURT IN LIGHT

OF THE LIMITED RETROACTIVE APPLICATION

AWARDED EDWARDS BY THE DECISION IN SOLEM

v. STUMES, U.S. , 52 US.L.W. 4307

(FEBRUARY 29, 1984).

PARTIES

The petitioner in this action is Arthur Tate Jr., in

his capacity as Superintendent of the Chillicothe Cor-

rectiona! Institute and successor custodian to Ted Engle.

The respondent is Charles E. Rose.

Le

iii

INDEX

Page

SRUMENE OEE UOMO TEED, oo ccc ccc cect eseceen i

eo ka abe e sake kee sucess ed ii

EN et 2 iii

ayo 5 a Ak aid'dae ves ss a0 6 eee i 1

EE EE a 1

CONSTITUTIONAL PROVISIONS INVOLVED ...... 1

ie a | 3

ARGUMENT IN SUPPORT OF

Be gy ES | 15

pReUEU Oe UNOS OF DEMING, occ cece nes A-42

iv

INDEX TO AUTHORITIES

Page

Cases:

Chapman v. California,

a eee eA 9

Edwards v. Arizona,

451 U.S. 477 (1981)... .8,9, 10, 15, 16, 17, 18, 19

Johnson v. Zerbest,

ee SE IE 0's te wand deena eaees 15, 19

Miranda v. Arizona,

Gere Ua Ge CUE o Silo cae one Mee dss 16, 19

Oregon v. Bradshaw,

U.S. , 77 L. Ed. 2d.

I le ee a era eh an eases 15, 16

Oregon v. Hass,

ok a Fk, | a rr 14

Rose v. Engle,

og Me Bese Se a: 9

Solem v. Stumes,

U.S , 52 U.S.L.W. 4307

(February 29, 1984)........... 10, 15, 16, 18, 19

Stumes v. Solem,

G71 F.2d 1760 (Oth Cir. 1962)... ... 2 wc caw 10

United States v. Johnson,

if & Se eer 9

Statutes:

rs I Es ccc cnctcnsncsocasens 8, 16

Ohio Revised Code Section 2903.01................ 3

OPINIONS BELOW

The decision of the United States Court of Appeals

for the Sixth Circuit is reported as Rose v. Engle, 722

F. 2d 1277 (6th Cir. 1983). (A-1) The decision of the

United States District Court for the Southern District of

Ohio, Eastern Division is unreported. (A-15) The

decision of the Ohio Court of Appeals for the First

Judicial District is unreported. (A-29)

JURISDICTION

The decision of the United States Court of Appeals

for the Sixth circuit was entered on November 28, 1983.

The order of the Circuit court denying rehearing and

rehearing en banc was entered on January 26, 1984.

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

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves Amendment V to the Constitu-

tion of the United States:

No person shall 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.

The case also 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 wherein

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.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

ARTHUR TATE JR., Superintendent

Chillicothe Correctional Institute,

Petitioner,

Vv.

CHARLES E. ROSE,

Respondent.

STATEMENT OF THE CASE

Respondent Charles E. Rose was indicted by the

Warren County, Ohio, Grand Jury on one (1) count for

the crime of aggravated murder in violation of Ohio

Revised Code Section 2903.01 (A). The indictment

stemmed from the killing of respondent's crippled wife.

Upon arraignment, respondent entered a plea of not

guilty and the cause came on for jury trial. The jury

returned a verdict of guilty of the lesser included offense

of murder in violation of Ohio Revised Code Section

2903.02.' On May 30, 1979, the state trial court

sentenced respondent to a term of from fifteen (15) years

to life imprisonment.

Ohio Revised Code Section 2903.02 provides:

No persor: shall purposely cause the death of another.

Respondent perfected an appeal to the Ohio Court

of Appeals for the First Judicial District. As his initial

assignment of error, respondent contended that the trial

court erred in failing to suppress certain of his custodial

statements. The Ohio appellate court rejected respon-

dent’s claim as follows:

The first of the appellant’s three assign-

ments challenges, on constitutional

grounds, the admission into evidence of

certain statements made by the appellant

to the Chief of Police of the Franklin,

Ohio, police department during the course

of a custodial interrogation initiated after

the appellant’s arrest. It is argued that

such statements should have been excluded

at trial because they were given without

a waiver in violation of the appellant’s

rights as defined in Miranda v. Arizona,

(1966), 384 U.S. 436, 86 S. Ct. 1602, and

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

96 S. Ct. 321.

The facts and circumstances attendant to

the appellant’s interrogation as they were

developed in the proceedings below show

that the appellant was arrested by an

officer of the Franklin, Ohio, police

department on the afternoon of December

2, 1978, at approximately 4:30 p.m. The

arrest was made at a residence within the

immediate vicinity of the scene of the kill-

ing for which the appellant was later

charged. After being informed by the

appellant that he had just shot his wife,

the officer transported him to a police

station house where the appellant was

read his Miranda rights. Upon being

apprised of his rights, the appellant

indicated to the officer that he would not

respond to any questions from him until

he had opportunity to retain an attorney.

The appellant was thereupon placed in a

jail cell at the station house until approx-

imately 6:25 p.m. on that same day, at

which time, he was escorted into an office

occupied by the Chief of Police of

Franklin, Ohio. Before embarking upon

any form of interrogation, the Chief

informed the appellant that his wife was

dead and that he was being charged with

her murder. He also readvised the

appellant of his Miranda rights, and asked

him if he understood them. The appellant

replied that he understood his rights, and

proceeded to sign a waiver-of-rights form.

He then began a patently contradictory

explanation of the circumstances sur-

rounding his wife’s death, the substance

of which he later sought to exclude from

evidence at trial.

The appellant’s argument that the state-

ments at the station house were obtained

in violation of his constitutional rights is

bottomed first upon the blanket assertion

that any statement made in a custodial

setting after the accused has expressed an

intent to exercise his right to counsel is

constitutionally infirm. In formulating

such a rule, he relies primarily on Miranda

v. Arizona, supra, and State v. Korn, No.

CA77-07-0084, unreported (1st Dist.

1979).

Although it is true that Miranda contains

language tending to support the appeilant’s

argument in support of a per se rule it is

equally clear in light of subsequent inter-

pretations of that decision that such a

rule has not yet been adopted. See

Michigan v. Mosley, (1975), 423 U.S.

96,98 S. Ct. 321; White v. Finkbeiner,

(7th Cir. 1979), 611 F. 2d 186; United

States v. Rodriquez-Gasteium, (9th Cir.

1978), 569 F. 2d 482. Cf. State v. Black,

(1976), 48 Ohio St. 2d 262, 358 N.E.

2d 551, vacated and remanded on other

grounds, 438 U.S. 910. In Mos/ey, supra,

the Supreme Court of the United States,

per Stewart J., rejected a similar per se

approach to the resumption of a custodial

interrogation after the accused has

invoked his right to remain silent by

recognizing that such a posture ‘‘would

transform the Miranda safeguards into

wholly irrational obstacles to legitimate

police investigative activity, and deprive

suspects of an opportunity to make

informed and intelligent assessments of

their interests.’” 423 U.S. at 102. Instead,

the Court concluded that:

“Admissibility of statements ob-

tained after the person in custody

has decided to remain silent depends

under Miranda on whether his right

to cut off questioning was scrupu-

lously honored.” 423 U.S. at 104.

Upon examination of the record in the

instant cause, we are convinced that the

police officers who questioned the appel-

lant after his arrest displayed the necessary

scrupulous regard for his constitutional

rights. When the appellant first indicated

upon his arrival at the station house that

he would not speak at that time without

the assistance of counsel, it is uncontro-

verted that the officer who had earlier

read him his rights immediately cut off

any dialogue which could have been

construed as an interrogation, and con-

fined the appeliant to a jail cell. It was

not until approximately ninety minutes

later that the appellant was next con-

fronted by a second law enforcement

official.

In light of the appellant’s execution of the

waiver form and the other circumstances

attendant to his interrogation which are

described above, we are convinced that

the judge presiding at trial was entitled to

conclude that he had, in fact, knowingly

and voluntarily waived his Miranda rights

upon an independent and rational reassess-

ment of his interests. See North Carolina

v. Butler, (1979), U.S. , 99S.

Ct. 1755; Brewer v. Williams, (1977),

430 U.S. 387, 97 S. Ct. 1232, State v.

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

U.S : State v. Reese, No.

C-790596, unreported (1st Dist. 1980).

[A-30] , [A-34] [Footnotes omited]

Respondent thereafter sought discretionary review

of the appellate court affirmance. However, on March 18,

1981, the Supreme Court of Ohio overruled respondent’s

motion for leave to appeal. Respondent did not file a

petition for writ of certiorari with this Court. Sixty-

one (61) days after the Supreme Court of Ohio denied

discretionary review, this Court issued the decision in

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

On December 10, 1981, respondent filed a petition

for writ of habeas corpus pursuant to 28 U.S.C. Section

2254 with the United States District Court for the

Southern District of Ohio, Eastern Division. On

December 29, 1982, the district court issued an opinion

and order finding that certain of respondent’s custodial

statements had been taken in violation of the prophylactic

rule enunciated in Edwards v. Arizona, supra. (A-15)

While acknowledging that the decision in Edwards was

issued some two and one half years after the custodial

statements were taken, the court held that Edwards was

fully retroactive by stating:

The Court is cognizant of the fact that

Edwards v. Arizona, supra was decided

after petitioner’s trial and that one judge

of the United States Court of Appeals for

the Sixth Circuit intimated in dicta that

he did not believe that Edwards would

apply retroactively. United States v.

Holliday, F. 2d (6th Cir.

1981) (slip opinion, p.3 n.1). Nonetheless,

this Court is of the opinion that Edwards

does not represent a change in the law as

enunciated in Miranda. The Eighth

Circuit in Stumes v. Solem, 671 F. 2d

1150, 1155-1158 (8th Cir.) applied

Edwards retroactively. (A-22)

The district court went on to nold that admission of the

statements in issue did not fall within the ambit of the

harmless error doctrine.

Petitioner perfected a timely appeal to the United

States Court of Appeals for the Sixth Circuit. On

November 28, 1983, the circuit court issued a 2-1

decision affirming the district’s court grant of the writ of

habeas corpus. Aose v. Engle, 722 F.2d 1277 (6th Cir.

1983) (A-1) Utilizing an analysis predicated upon the

decision in United States v. Johnson, 457 U.S. 537

(1982), the circuit court majority held that Edwards v.

Arizona, supra was retroactive and further held that

admission of the statement did not constitute harmless

error. In dissent, Judge Wellford stated that, retroactivity

aside, any error in the admission of the statements was

harmless under the standards articulated in Chapman v.

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

On January 26, 1984, the circuit cour® ‘ssued an

order denying petitioner’s motion for reheai.°q and

suggestion of rehearing en banc. (A-14) The circuit

court refused to stay the mandate pending certiorari

_review by this Court and an ensuing application for stay,

addressed to Justice O’Connor, was denied. Thereafter,

on February 29, 1984, this Court issued the decision in

Solem v. Stumes, U.S , 52 U.S.L.W. 4307

February 29, 1984.2

The evidence presented against respondent during

the course of his state court trial was quite simply over-

whelming and is summarized as follows.

Respondent married Jewell Rose, the decedent, on

July 1, 1977. The decedent was a crippled woman (T.

205), very short, 4’ 10” (T. 201) and very heavy (213

pounds) (T. 201). She owned the house in which she

lived with respondent (T. 481-482). They had a history

of marital discord which included violent exchanges

(T. 439). On the morning of December 2, 1978, Jewell

Rose was “mad” or upset with respondent about some-

thing (T. 456) and she packed his clothes and loaded

them into his car (T. 480-481). After his wife loaded

his clothing into the car, respondent left the house and

went “shopping” (T. 456-458).

Later that day, at approximately 4:00 p.m., respon-

dent entered the Western Auto Store in Franklin, Ohio,

and purchased a handgun, the only handgun they had in

the store (T. 149) which was a .22 revolver, and fifty

(50) rounds of live ammunition (T. 147-153). The owner

of the Western Auto testified that respondent came to

the store initially at approximately 3:30 p.m. and inquired

2This Court's decision in Solem v. Stumes, supra, reversed the circuit

court opinion in Stumes v. Solem, 671 F.2d 1150 (8th Cir. 1982); the very

decision upon which the district court predicated its holding that Edwards v.

Arizona, supra, was applicable to the instant case.

11

about the purchase of a handgun. He left and later

returned to make the purchase. Upon being required

to complete an official questionnaire to conclude the

‘ transaction, respondent stated: ‘You must think I’m

going to shoot someone.” (T. 152). Respondent

testified he had prior experience with firearms, including

handguns.

Twenty (20) minutes after respondent left the store

with his gun and ammunition, Franklin police officers

received a call concerning a shooting incident on 722

Park Avenue, the home of the decedent (T. 162-166).

Jewell Savage, a neighbor, testified that about 4:00

p.m. on the day of the shooting she observed respondent

staggering through the alley which separates their houses

with a gun in his hand, heading toward the home of

neighbor, Sandy Stephens. It was she who immediately

called the police. (T. 175). Officers responding to the

scene found the body of respondent’s wife, who had

been shot through the heart, lying in the doorway of

the home.

After the shooting, respondent went to Charles and

Sandy Stephens’ house and made comments heard hy

Mr. Stephens, his wife Sandy and Mrs. Stephens’ sister,

Verla Raney and Phillis Raney. Mr. Stephens testified

that he was sleeping before respondent came to his house,

but he awoke and heard respondent say, ‘Sandy, go

check on her. If she’s hurt bad, | have a murder rap.”

Respondent said nothing about an “‘accidental’’ shoot-

ing (T. 186). Verla Raney testified that when respondent

entered the house, he said, “Sandy, you got to hide me.

| just shot my wife.’” She also recalled his later statement

that “if she was dead, he would take a murder rap.”

Sandy Stephens testified respondent told her to take the

gun and hide it.

Respondent was arrested at the Stephens’ home.

Respondent told Officer Pressler, ‘‘l shot my wife.”

(T. 166). Officer Pressler then transported respondent

to the police station and advised him of his constitutional

rights (T. 168). After stating that he understood these

rights, respondent told Officer Pressler that he did not

want to discuss the incident with him (T. 168) and that

he wanted to have an attorney (T. 172). Respondent

was then removed to the jail (T. 168).

Approximately one hour and thirty minutes later,

Franklin Police Chief, George Hamilton, not knowing

that respondent had requested counsel, interviewed

respondent, again advising him of his Miranda rights,

concerning the incident (T. 218). Respondent stated that

he understood his constitutional rights and executed a

written waiver of such rights prior to questioning.

Respondent told conflicting versions of what had tran-

spired (T. 235). Initially, respondent stated that his wife

had shot herself (T. 235). When reminded that two shots

were fired from the gun, he next stated that the gun fired

accidentally while he and his wife were engaged in an

argument and struggle over the gun (T. 255). Respondent

then told Chief Hamilton he would relate the truth about

the shooting if the chief would promise to let him go

home (T. 366). The discussion ceased when Chief

Hamilton received a call from respondent’s attorney

(T. 223).

Police subsequently searched respondent’s car and

found a box of .22 shells on the dash, clothing and per-

sonal articles stacked on the passenger seat and back

seat of the car (T. 266), a live shell on the front seat,

and the empty carton from which the pistol had been

removed (T. 266).

13

Dr. Paul Jolly, Deputy Coroner testified that the

victim died as a result of a single bullet wound through

the heart, and the bullet was ballistically shown to have

been fired from the gun that respondent had purchased

on the day of the shooting. The shot was fired from a

range of four (4) feet. Testimony was also adduced that

the gun involved had a heavy pull and could not be fired

without pulling the trigger.

At trial, in addition to testifying about his wife’s

packing his clothes into the car, respondent admitted to

loading the revolver in his car, parked in the driveway,

with nine (9) bullets just prior to entering the house

(T. 465, 491). He then fired a shot through the floor-

board of his car. He then took the gun into the house

and laid it on a table. Respondent then claimed he was

“messing around” with the gun when his wife entered the

room and the gun went off inadvertently (T. 504-505).

Respondent testified he loaded the gun in the driveway,

went immediately into the house and accidentally shot

his wife through the heart at a distance of four (4) feet

while trying to unload the same gun he had loaded only

moments before entering the house (T. 468, 501-502).

The jury rejected this totally incredulous story and found

respondent guilty of murder.

In his dissent in the court below, Judge Wellford

summarized what he characterized as the “remarkable

defense theory” as follows:

To believe defendant’s story therefore

requires that one believe that, within

a short. time after purchasing a gun,

defendant accidentally fired the gun

14

twice; it further requires that one believe

that defendant, shortly after accidentally

discharging the gun while loading it,

nevertheless unloaded the gun while

pointing it at his wife’s heart from a

distance of four feet. Given this re-

markable defense theory, admission of the

contested statements here was harmless

beyond a reasonable doubt. (A-12)

Judge Wellford went on to observe that the wholly

exculpatory nature of the two (2) statements in issue,

i.e., that respondent’s wife shot herself or that respondent

shot her accidentally, were only of utility to the pro-

secution insofar as they impeached the credibility of

respondent’s trial testimony and thus proper pursuant

to the decision of this Court in Oregon v. Hass, 420 U.S.

714 (1975). To this end, Judge Wellford stated:

Furthermore, the procedural posture of

this case seems to support the conclusion

that any error here was harmless. Because

defendant testified, the district court

found that the contested statements

would have been admissible for impeach-

ment purposes even if obtained uncon-

stitutionally; defendant did not dispute

that conclusion. Despite this conclusion,

the district court issued the writ of

habeas corpus, noting that the statements,

while admissible for impeachment, were

not admissible for the truth of the matter

asserted. That distinction, however, is of

no significance in this case. The contested

15

statements here were intended to be

exculpatory: if either had been believed,

or if they created a reasonable doubt,

defendant could not have been convicted

of intentionally killing his wife. Because

the statements were supposedly exculpa-

tory, their only possible use was for

impeachment; any error in admitting

them here was harmless, even if Edwards

is applicable.

(A-12)

ARGUMENT IN SUPPORT OF

GRANTING CERTIORARI

The instant case presents an important issue of

constitutional law regarding a question expressly left

open by this Court’s recent decision in So/em v. Stumes,

US. , 52 U.S.L.W. 4307 (February 29,

1984).

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

Court held that ‘’. . .an accused. . .having expressed his

desire to deal with the police only through counsel, is

not subject to further interrogation by the authorities

until counsel has been made available to him, unless the

accused himself initiates further communication, ex-

changes, or conversation with the police.’’ 45% U.S. at

484-485. This principle enunciated in Edwards '’. . .was

in effect a prophylactic rule.” Oregon v. Bradshaw,

U.S , 77 L. Ed. 2d 405, 411 (1983). The

““suspect-initiated’’ rule fashioned in Edwards was a per se

rule which went beyond the Johnson v. Zerbst, 304 U.S.

16

458 (1938) waiver standard cited in Miranda v. Arizona,

384 U.S. 436 (1966). Oregon v. Bradshaw, U.S.

—___ , 77 L. Ed. 2d at 413.3

The lower state and federal courts thereafter split

upon the issue of whether the decision in Edwards v.

Arizona, supra, should be applied retroactively. In order

to resolve this conflict, this Court granted

certiorari in Solem v. Stumes, supra. \n Stumes, this

Court held that the rule established in Edwards sould

not "’. . .be applied in co//atera/ review of final convic-

tions.” U.S , 52 U.S.L.W. at 4310 (emphasis

- added).

While the instant controversy clearly arose upon

collateral review, i.e., by means of an action brought

pursuant to 28 U.S.C. Section 2254, the court below

reasoned that respondent’s conviction was not “final”

by stating as follows:

The alternative argument that Edwards is

inapplicable to this case because Edwards

applies retroactively only to those cases

not yet final when Edwards was decided is

similarly unavailing because on May 18,

1981, when Edwards was decided, Rose’s

case was still pending on direct appeal.

As the Supreme Court noted in Johnson,

3The dissent in Bradshaw similarly viewed Edwards as having estab-

lished a new prophylactic rule and stated:

In any event, no confusion on this point can remain

after today’s decision for eight Justices manifestly agree

that Edwards did create a per se rule. The plurality

explicitly refers to the “prophylactic rule’ of Edwards.

L.S , 77 L. Ed. 2d at 418 n.2. 4

17

“By final we mean where the judg-

ment of conviction was rendered,

the availability of appeal exhausted,

and the time for petition for

certiorari had elapsed [or a peti-

tion for certiorari finally denied,

all] before our decision in Mapp v.

Ohio.” Linkletter v. Walker, 381

U.S. at 622, n. 5. See also 7ehan

v. United States ex rel. Schott,

382 U.S. 406, 409, n.3 (1966).

102 S. Ct. at 2583 n. 8 (emphasis added;

alteration of quotation in original).

Rose’s appeal was dismissed by the

Supreme Court of Ohio on March 18,

1981. Rose had sixty days from that

date to file a petition for certiorari.

Sup. Ct. R. 20; 28 U.S.C. Section 2101

(1976). Because the sixtieth day from

March 18, 1981 was a Sunday, May 17,

1981, the period for Rose’s filing a peti-

tion for certiorari did not elapse until the

end of the next day, May 18, 1981.

Sup. Ct. R. 29. On May 18, 1981,

Edwards was decided by the Supreme

Court and, accordingly, Rose’s case was

still pending on direct appeal when

Edwards was decided.

(A-9)

Thus, quite literally by the narrowest of margins, the

case herein was not “‘final’’ as this Court has interpeted

that term as of the date the Edwards decision was issued.

18

The instant case thus squarely falls within the

question which was expressly left open in So/em v.

Stumes, i.e., the extent, if any, to which Edwards is

retroactive. In Stumes, this Court stated:

Weighing these considerations, we con-

clude that Edwards should not be applied

retroactively.

At a minimum, nonretroactivity means

that a decision is not to be applied in

collateral review of final convictions.

For purposes of this case, that is all we

need decide about Edwards. Our prior

cases have drawn the nonretroactivity line

in a variety of places. Some decisions

have been applied only to defendants

whose convictions were not yet final

when the new rule was established, United

States v. Johnson, 457 U.S. 537 (1982);

Linkletter v. United States, 381 U.S. 618

(1965), some only to those defendants

whose trials had not yet bejun at that

point, Johnson v. New Jersey, 384 U.S.

719 (1966); DeStefano v. Woods, 392

‘U.S. 631 (1968), some only to those

whose constitutional rights were violated

after the law-changing decision was

handed down, United States v. Peltier,

422 U.S. 531 (1975); Desist v. United

States, 394 U.S. 244 (1969); Stova/ v.

Denno, 388 U.S. 293 (1967), and some

only to those cases where the prosecution

sought to introduce (newly) _ illegal

evidence after the date of the nonretro-

19

active decision, Fuller v. Alaskz, 393

U.S. 80 (1968). Just where the line

should be drawn as to Edwards need not

be decided today. U.S , 52

U.S.L.W. at 4310-4311 (emphasis added)

(footnote omitted).

Petitioner respectfully submits that the prophy-

lactic rule fashioned in Edwards should only be applic-

able to violations occurring as of the date of its issuance.

As this Court cogently observed in So/em v. Stumes,

supra, “[i]t would be unreasonable to expect law en-

forcement authorities to have conducted themselves in

accordance with (Edwards) bright line rule prior to its

announcement; and retroactive application would disrupt

the administration of justice.” U.S , 52

U.S.L.W. at 4310. Such observations could not more

clearly apply to the instant case. !t has never been so

much as suggested that the police chief who questioned

respondent either failed to tender the warnings mandated

by the Miranda decision or failed to obtain a knowing,

voluntary and intellegent waiver of such rights as required

pursuant to Johnson v. Zerbst, supra, prior to any ques-

tioning. Moreover, the two (2) wholly exculpatory

statements made by respondent were only of utility to

the prosecution insofar as they served to further impeach

what was the facially implausible trial testimony given

by respondent.

As the instant case definitively presents the question

expressly left open by this Court in So/em v. Stumes,

supra, certiorari should be granted to resolve this issue of

national importance.

20

Respectfully submitted,

ANTHONY J. CELEBREZZE, JR.

Attorney General of Ohio

RICHARD DAVID DRAKE

Assistant Attorney General

Counsel of Record

KAREN A. KOLMACIC

Assistant Attorney General

State Office Tower

30 East Broad Street, 26th Floor

Columbus, Ohio 43215

(614) 466-5414

ATTORNEYS FOR PETITIONER

21

APPENDIX

Opinion, November 28, 1983,

United States Court of Appeals for the

Sixth Circuit, Rose v. Engle, 722 F. 2d

ogg Ok | As are

Order, January 26, 1984,

United States Court of Appeals for the

Sixth Circuit, denying petition for rehearing

Ge CUI GA NS og vc cc cede nccwes

Opinion and Order, December 29, 1982,

United States District Court for the South-

ern District of Ohio, Eastern Division grant-

ing petition for writ of habeas corpus.......

Decision, August 27, 1980,

Ohio Court of Appeals for the First Judicial

District, affirming the trial court judgment...

Page

.A-29

A-1

No. 83-3051

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CHARLES E. ROSE,

Petitioner-Appellee,

Vv.

TED ENGLE, SUPERINTENDENT,

Respondent-Appel/ant.

ON APPEAL from the United States District

Court for the Southern District of Ohio.

Decided and Filed November 28, 1983

Before: MARTIN and WELLFORD, Circuit Judges;

and PECK, Senior Circuit Judge.

The Court delivered a per curiam opinion. Judge

WELLFORD, Circuit Judge (pp. 10-11) delivered a

separate dissenting opinion.

PER CURIAM. The principal question presented in

this appeal is whether the Supreme Court's decision in

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

applied retroactively.' Because we find that the district

court correctly held that Edwards should be applied

'The Supreme Court has granted certiorari to consider the question

of the retroactivity of Edwards. Solem v. Stumes, 51 U.S.L.W. 3929 (U.S.

July 6, 1983) (No. 81-2149).

A-2

retroactively to this case, we affirm the district court’s

judgment granting Charles E. Rose’s petition for writ of

habeas corpus.

On the morning of December 2, 1978, Rose quarreled

with his wife, Jewell. The Roses had a history of marital

disputes. At approximately 4:00 p.m. that afternoon,

Rose purchased a .22 revolver and fifty rounds of

ammunition. Rose told the sales clerk, ‘“You must think

I’m going to shoot someone."’ Approximately twenty

minutes later, aneighbor of the Roses called the Franklin,

Ohio police department and reported a shooting incident

at the Roses’ residence. When police arrived, they found

Jewell’s body lying in the doorway of the residence. At

about the same time, neighbors saw Rose carrying a gun

in the alley next to the residence. Rose went to a neigh-

bor’s house and made several remarks. One witness

testified that Rose said, ‘‘Sandy go check on her. If

she’s hurt bad, | have a murder rap.’’ Another witness

testified that Rose said, ‘‘Sandy you got to hide me. |

just shot my wife” and that if Jewell was dead, he would

take a murder rap. Two other witnesses testified that

Rose said he accidentally shot his wife. Rose was

arrested at the neighbor’s house where he told the arrest-

ing officer that he had shot his wife.

At the police station, Rose, after being advised of

his rights under Miranda v. Arizona, 384 U.S. 436 (1966),

requested an attorney and stated that he did not wish to

discuss the incident. The police did not then interrogate

Rose. Less than two hours later, Franklin Police Chief

George Hamilton, after again advising Rose of his Miranda

A-3

rights, asked him about the shooting. Rose gave two

conflicting stories. First, Rose claimed that Jewell had

shot herself. Then, in response to Chief Hamilton’s state-

ment that two shots had been fired, Rose claimed that he

had argued with Jewell and the gun fired during a struggle

over the gun. Rose also said that he would tell the truth

if allowed to go home.

Rose was indicted on the charge of aggravated

murder, Ohio Rev. Code Section 2903.01(A), in January,

1979. Rose was tried before a jury in May, 1979. The

principal issue at trial was whether Rose intentionally or

accidentally shot and killed Jewell. At trial, Rose moved

to suppress evidence concerning his statements to Chief

Hamilton. The trial court denied the motion. Rose was

convicted of the lesser included offense of murder, Ohio

Rev. Code Section 2903.02(A). Rose was sentenced to

imprisonment for a term of fifteen years to life.

Rose appealed his conviction on the ground, among

others, that’ his statements to Chief Hamilton were

elicited in violation of his Fifth Amendment rights out- .

lined in Miranda. \n an opinion relying on Michigan v.

Mosley, 423 U.S. 96 (1975), the state court of appeals

rejected Rose’s argument and affirmed his conviction.

State v. Rose, No. 382 (Warren Cty. Ct. App. Aug. 27,

1980). Rose then filed an appeal to the Supreme Court

of Ohio. On March 18, 1981, the Supreme Court of

Ohio, sua sponte, dismissed Rose’s appeal. State v. Rose,

No. 80-1488 (Ohio March 18, 1981). On May 18, 1981,

the United States Supreme Court announced its de-

cision in Edwards which held ‘“‘that once a suspect in-

vokes his right to counsel, he may not be subjected to

further interrogation until counsel is provided unless the

suspect himself initiates dialogue with the authorities.”

A-4

Wyrick v. Fields, 103 S. Ct. 394, 395 (1982) (per curiam)

(construing Edwards).

On December 10, 1981, Rose filed the instant

petition for writ of habeas corpus, pursuant to 28 U.S.C.

Section 2254. In an opinion and order dated December

29, 1982, the district court granted the petition based on

its conclusions that Rose’s statements to Hamilton were

inadmissible under Edwards and Miranda, that Edwards is

to be applied retroactively to this case, and that

admission of the statements was not harmless error. The

state has appealed on the grounds that Edwards should

not be applied retroactively to this case and that the

admission of evidence of Rose’s statements to Chief

Hamilton was harmless error. The state has not disputed

the applicability of Edwards to this case. —

The state presents alternative arguments for the non-

retroactive application of Edwards. The state argues that

because Edwards effected a “‘clear break’’ from settled

precedent by creating an unanticipated per se rule with

respect to the waiver of the Fifth Amendment right to

counsel during custodial interrogation, under the

principles enunciated in United States v. Johnson, 102 S.

Ct. 2579 (1982), Edwards should be applied prospectively

only. The state alternatively argues that if Edwards is

not a “clear break’ with settled precedent, Johnson

directs that Edwards be applied retroactively to cases

still pending when Edwards was decided. Because the

state contends that Rose’s case was final when Edwards

was announced, it concludes that Edwards does not

apply retroactively to the case.

A-5

Rose’s argument in response is that Jo/fnson is in-

applicable to Edwards because Johnson, by its very terms,

is limited to decisions construing the Fourth Amendment.

Rose continues that even under the principles outlined in

Johnson, Edwards should be applied retroactively

because Edwards does nothing more than reaffirm

Miranda’s holding that “[i] f the individual states that he

wants an attorney, the interrogation must cease until an

attorney is present.”’ 384 U.S. at 474.

The threshhold issue to be resolved is whether the

principles enunciated in Johnson to determine the

retroactivity of decisions construing the Fourth Amend-

ment are to be applied to determine the retroactivity of

Edwards. \n Johnson, the Supreme Court held that

Payton v. New York, 445 U.S. 573 (1980), in which

the Court held that the Fourth Amendment prohibits

a warrantless and nonconsensual entry into a suspect’s

home to make a routine felony arrest, is to be applied

retroactively to all convictions not final at the time it

was decided. © In reaching this holding, the Supreme

Court stated that three principles concerning retroactivity

had been established: (1) when a Supreme Court decision

merely applies settled precedent to new and different

factual situations, the decision is applied retroactively;

(2) when a Supreme Court decision establishes a rule of

criminal procedure that is a ‘‘clear break with the past’,

the decision is not retroactive; and (3) when a Supreme

Court decision rules that a trial court lacked the authority

to convict or punish a criminal defendant, the decision is

retroactive. The Court held that none of these principles

applied because Payton besides not affecting the trial

court’s authority was neither a mere application of

settled precedent to new situations nor a “clear break

with the past’’. The Court then adopted a fourth principle

A-6

that had been proposed by Justice Harlan, Desist v.

United States, 394 U.S. 244, 258 (1969) (Harlan, J.

dissenting), viz., that where the Court’s decision is not

controlled by one of the preceding three principles, the

holding of the Court will be applied ‘‘to all those cases

which are still subject to direct review by this Court at

the time the ‘new’ decision is handed down.’’2

We hold that the principles enunciated in Johnson

may be used to determine the retroactivity of Edwards.

Although in announcing its decision in Johnson the Court

stated that ‘‘we express no view on the retroactive applica-

tion of decisions construing any constitutional provision

other than the Fourth Amendment’’, 102 S. Ct. at 2594

(footnote omitted), in reaching that decision the Court

relied on a survey of its decisions determining the retro-

active application of decisions construing constitutional

provisions other than the Fourth Amendment. £.4g., id.

at 2587 (citing Gosa v. Mayden, 413 U.S. 665, 672-73

(1973) (plurality opinion) (no retroactive application of

Fifth and Sixth Amendments ruling in O’Callahan v.

Parker, 395 U.S. 258 (1969))); id. (citing Michigan v.

Payne, 412 U.S. 47, 55-57 (1973) (no retroactive applica-

tion of Fifth Amendment ruling in North Carolina v.

Pearce, 395 U.S. 711 (1969))); id. at 2588 (citing Ashe

v. Swenson, 397 U.S. 436, 437 n.1 (1970) (retroactive

application of Fifth Amendment ruling in Benton v.

2The Court intimated that a fifth principle is well-settled, viz., that

where the purpose of a decision ‘‘is to overcome an aspect of the criminal

trial that substantially impairs its truth-finding function’, the decision

should be given complete retroactive effect. Johnson, supra, 102 S. Ct. at

2594 n.21 (citing Hankerson v. North Carolina, 432 U.S. 233 (1977); /van

V. v. City of New York, 407 U.S. 203 (1972)). This principle does not

appear to be relevant to the issue cf the retroactivity of Edwards.

Maryland, 395 U.S. 784 (1969))). | Moreover, the

principles for determining the retroactivity of decisions

construing the Fourth Amendment have regularly been

applied in determining the retroactivity of decisions

construing the Fifth Amendment. &.g., Tehan v. United

States ex rel. Schott, 382 U.S. 406 (1966) (applying the

retroactivity analysis of Link/letter v. Wa/ker, 381 U.S.

618 (1965)). Finally, we can discern no principled basis

for declining to apply the Johnson analysis of retroactivity

to a decision construing the Fifth Amendment. Accord

Ladd v. State, 664 P.2d 178 (Alaska App. 1983) (applying

Johnson analysis to issue of retroactivity of Edwards).°

Applying the principles enunciated in Johnson to

the issue of the retroactivity of Edwards, we hold the

state’s argument that Edwards should be applied prospec-

tively only because it is a “‘clear break’’ from settled

precedent to be without merit. In Johnson, the Court

held that a ruling constitutes a “clear break’ only if it

explicitly overrules a past precedent, disapproves a

practice arguably sanctioned by the Court, or overturns

a longstanding and widespread practice which a near-

unanimous body of lower court authority has expressly

approved and which has not been considered by the

Court.

Edwards did none of these. Edwards did not

expressly overrule any precedent. After outlining the

holdings of Miranda and its progeny, the Court in

Edwards stated, ‘‘We reconfirm these views and, to lend

them substance, emphasize that it is inconsistent with

3in Johnson, the Court took considerable pains to harmonize the

Principles enunciated therein with previous decisions analyzing retroactivity.

Johnson, supra, 102 S, Ct. at 2594 n.21.

A-8

Miranda and its progeny for the authorities, at their

instance, to reinterrogate an accused in custody if he has

ciearly asserted his right to counsel.’’ 451 U.S. at 485.

See also Oregon v. Bradshaw, 103 S. Ct. 2830, 2837

n.2. (1983) (Powell, J., concurring) (arguing that

Edwards does not alter waiver analysis except as to

emphasis of prosecution’s burden where critical question

is propriety of police communication with suspect); /d. h

at 2839 (Marshall, J., dissenting) (referring to safeguards

created by Miranda and Edwards). Nor did Edwards dis-

approve a practice previously sanctioned by the Court.

To the extent that the Court had considered the continued

interrogation of a suspect who had requested the assistance

of counsel, the Court had expressed its disapproval. See

Michigan v. Mosley, supra, 423 U.S. at 104 n.10; Fare

v. Michael C., 442 U.S. 707, 719 (1979); Rhode Island

v. Innis, 446 U.S. 291, 298 (1980). Finally, Edwards did

not overturn a long-standing practice that had been

approved by a near-unanimous body of lower court

authority. Of particular relevance is that Edwards did

not alter Sixth Circuit law substantially, but rather

confirmed the practice of this court. See Maglio v. Jago,

580 F.2d 202, 205-06 (6th Cir. 1978); Combs v. Wingo,

465 F.2d 96, 98-99 (6th Cir. 1972).4 Accordingly,

Edwards ‘‘does not fall into that narrow class of decisions

whose nonretroactivity is effectively preordained because

they unmistakably signal ‘a clear break with the past’... .”’

Johnson, supra, 102 S. Ct. at 2589-90 (quoting Desist v. }

United States, supra, 394 U.S. at 248).

4 accord Nash v. Estelle, 597 F.2d 513 (5th Cir.) (en banc), cert.

denied, 444 U.S. 981 (1979). Contra United States v. Rodriguez-Gastelum,

569 F.2d 482 (9th Cir.) (en banc), cert denied, 436 U.S. 919 (1978).

a

A-9

The state’s alternative argument that Edwards is

inapplicable to this case because Edwards applies re-

troactively only to those cases not yet final when Edwards

was decided is similarly unavailing because on May 18,

1981, when Edwards was decided, Rose’s case was still

pending on direct appeal. As the Supreme Court noted

in Johnson,

“By final we mean where the judgment of convic-

tion was rendered, the availability of appeal

exhausted, and the time for petition for certiorari

had elapsed [or a petition for certiorari finally

denied, all] before our decision in Mapp v. Ohio.”

Linkletter v. Walker, 381 U.S. at 622, n.5. See

also Tehan v. United States ex rel. Schott, 382

U.S. 406, 409, n.3 (1966).

102 S. Ct. at 2583 n.8. (emphasis added; alteration of

quotation in original). Rose’s appeal was dismissed by

the Supreme Court of Ohio on March 18, 1981. Rose

had sixty days from that date to file apetition for

certiorari. Sup. Ct. R. 20; 28 U.S.C. Section 2101 (1976).

Because the sixtieth day from March 18, 1982 was a

Sunday, May 17, 1981, the period for Rose’s filing a

petition for certiorari did not elapse until the end of the

next day, May 18, 1981. Sup. Ct. R. 29. On May 18,

1981, Edwards was decided by the Supreme Court and,

accordingly, Rose’s case was still pending on direct appeal

when Edwards was decided.

Because of our finding that Rose’s conviction was

not final when Edwards was decided, we need not decide

whether Edwards merely applied settled legal principles

to a new factual situation, because under the principles

A-10

enunciated in Johnson, Edwards applies retroactively to

Rose’s case regardless of the resolution of this issue. We

do note, however, that the majority of courts that have

considered the issue has applied Edwards retroactively®

and that a panel of this court without explicitly addressing

the issue has applied Edwards retroactively.

The state also contends that admission of evidence

of Rose’s statements to Chief Hamilton was harmless

error. Chaprnan v. California, 386 U.S. 18 (1967). For

a court to find that admission of the evidence was harm-

less error, ‘‘the court must be able to declare a belief that

it was harmless beyond a reasonable doubt.”’ /d. at 24.

United States v. Sca/f, 708 F.2d 1540 (10th Cir. 1983) (per curiam);

United States ex rel. Kimes v. Greer, 541 F. Supp. 632 (N.D. lil. 1982),

aff’g on rehearing, 527 F.Supp. 307 (N.D. Ill. 1981); People v. Paintman,

315 N.W.2d 418 (Mich.), cert. denied, 456 U.S. 995 (1982); State v. Brown,

317 N.W.2d 714 (Minn. 1982), cert. denied, 51 U.S.L.W. 3938 (U.S. July 6,

1983) (No. 82-1); State v. Taylor, 643 P.2d 379 (Ore. App. 1982); State v.

Price, 330 N.W.2d 779 (Wis. App.), appea/ denied, 333 N.W.2d 729 (Wis.

1983). Contra State v. Shea, 421 So. 2d 200 (La. 1982); State v. McCloskey,

446 A.2d 1201 (N.J. 1982). See also Ladd v. State, 664 P.2d 178 (Alaska

App. 1983) (declining to decide whether Edwards merely application of Fare

v. Michael C., supra, or Rhode Island v. Innis, supra, but holding that

Edwards is change of law from Miranda).

Sciark v. Jago, 676 F.2d 1099 (6th Cir. 1982), petition for cert. filed,

51 U.S.L.W. 3443 (U.S. Nov. 19, 1982) (No. 82-859). Several other circuits

have applied Edwards retroactively without expressly considering the issue.

E.g., United States v. Hinckley, 672 F.2d 115 (D.C. Cir. 1982) (per curiam)

(direct appeal); United States v. Downing, 665 F.2d 404 (1st Cir. 1981)

(direct appeal); Si/va v. Estelle, 672 F.2d 457 (5th Cir. 1982) (habeas

corpus); White v. Finkbeiner, 687 F.2d 885 (7th Cir. 1982) (habeas relief),

petition for cert. filed, 51 U.S.L.W. 3001 (U.S. June 18, 1982) (No. 81-

2340).

A-11

Based on our review of the trial record, we cannot

declare that the error of admitting evidence of Rose’s

statements to Chief Hamilton was harmless beyond

a reasonable doubt. As the district court correctly found,

“(t]he principal issue of the case was whether [Rose]

shot his wife purposely or accidentally.’ App. at 91.

There were, apart from Rase, no eyewitnesses to the

shooting. The prosecution’s case was built on the cir-

cumstances of the shooting: the Roses’ history of

marital disputes; the Roses’ marital dispute on the

morning of the shooting; Rose’s purchase of the gun only

a short time before the shooting; Rose’s statements to

neighbors following the shooting; and Rose’s state-

ments to Chief Hamilton. Rose’s defense was based

principally on Rose’s account of the shooting. In this

context, Chief Hamilton's testimony concerning Rose’s

contradictory versions of the shooting may well have

affected the jury’s decision.’

For the foregoing reasons, the judgment of the

district court is affirmed.

WELLFORD, Circuit Judge, dissenting. Apart from

the question as to whether Edwards v. Arizona, 451 U.S.

477 (1981), should be applied retroactively, | am con-

vinced that admission of defendant’s statements consti-

tuted harmless error under Chapman v. California, 386

U.S. 18 (1967). | therefore dissent.

Defendant’s contention at trial was that he shot his

wife accidentally while unloading his gun. One need not

even consider the contested statements to recognize the

Tin reaching this decision we note the emphasis placed on Rose’s

statements to Chief Hamilton by the prosecution in closing argument.

Trial transcript at 535-37.

A-12

implausibility of defendant’s story. Less than a half hour

before his wife’s death, defendant purchased the weapon

and ammunition with which she was killed, and made a

remark which may have been taken to indicate he was

thinking about killing someone. He claimed to have

loaded the gun in his car when he arrived home. Before

shooting his wife, defendant fired a shot through the

floorboard of his car. The state argued that the shot in

the car was a ‘‘test shot’’; defendant maintained that the

first shot occurred accidentally, while he was loading the

gun. To believe defendant's story therefore requires that

one believe that, within a short time after purchasing a

gun, defendant accidentally fired the gun twice; it further

requires that one believe that defendant, shortly after

accidentally discharging the gun while loading it, never-

theless unloaded the gun while pointing it at his wife’s

heart from a distance of four feet. Given this remarkable

defense theory, admission of the contested statements

here was harmless beyond a reasonable doubt.

Furthermore, the procedural posture of this case

seems to support the conclusion that any error here was

harmless. Because defendant testified, the district court

found that the contested statements would have been

admissible for impeachment purposes even if obtained

unconstitutionally; defendant did not dispute that

conclusion. Despite this conclusion, the district court

issued the writ of habeas corpus, noting that the state-

ments, while admissible for impeachment, were not

admissible for the truth of the matter asserted. That

distinction, however, is of no significance in this case.

The contested statements here were intended to be

exculpatory: if either had been believed, or if they

created a reasonable doubt, defendant could not have

A-13

been convicted of intentionally killing his wife. Because

the statements were supposedly exculpatory, their only

possible use was for impeachment; any error in admitting

them here was harmless, even if Edwards is applicable.

Accordingly, | would reverse the district court's

grant of habeas corpus relief.

No. 83-3051

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CHARLES E. ROSE,

Petitioner-Appellee,

Vv.

TED ENGLE, SUPERINTENDENT,

Respondent-Appellant.

ORDER

Filed January 26, 1984

BEFORE: MARTIN and WELLFORD, Circuit Judges;

and PECK, Senior Circuit Judge.

The court not having voted in favor of a rehearing

en banc, the petition for rehearing heretofore filed by

the respondent has been referred to the panel which

heard the appeal.

Upon consideration, the court concludes that the

issues raised in the petition for rehearing were fully

considered upon the original submission and decision of

the appeal. Accordingly, the petition for rehearing is

denied.

ENTERED BY ORDER OF THE COURT

/s/ John P. Hehman

Clerk

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

CHARLES E. ROSE

Petitioner

vs.

TED ENGLE, Supt.

Respondent

Civil Action C-2-81-1470

file stamp omitted

OPINION AND ORDER

Petitioner, a state prisoner, brings this action for a

writ of habeas corpus under 28 U.S.C. Section 2254.

This matter is before the Court on the petition, return

of writ, transcript of proceedings in State v. Rose, Case

No. 80831 (Warren Cty. C.P. Ct. May, 1979), and the

briefs and exhibits of the parties.

Petitioner was indicted by the January, 1979

Term Warren County, Ohio Grand Jury for aggravated

murder in violation of R.C. Section 2903.01(A). He was

tried to a jury which found him guilty of the lesser

included offense of murder in violation of R.C. Section

2903.02. The trial judge sentenced him to a term of

fifteen (15) years to life imprisonment.

A-16

Petitioner appealed his conviction to the Court of

Appeals for the First Appellate District alleging three

assignments of error. The appellate court affirmed the

judgment of conviction. He appealed to the Supreme

Court of Ohio which dismissed his appeal for want of a

substantial constitutional question.

Petitioner alleges that he is in custody in violation

of the United States Constitution because he was denied

his right to have counsel present during a custodial

interrogation. He asserts that when he was informed of

his Miranda rights, he stated that he did not wish to talk

until he had spoken to an attorney. Less than two hours

later, he was interrogated by another police officer, Chief

Hamilton, who elicited inculpatory statements from him

which were later used against him at trial.

From the testimony, it appears that petitioner was

arrested at 4:30 p.m. on December 2, 1978 at the scene

of the shooting by Officer Pressler, a police officer for

the City of Franklin. Officer Pressler took him to the

police station and read him his Miranda warnings. The

officer testified that when he advised petitioner of his

right to have an attorney present, ”.. . he [petitioner]

stated to me he did not want to talk to me at that time

until he had an attorney.”’

At 6:25 p.m., George Hamilton, II|, Chief of Police

for the City of Franklin, had petitioner brought into his

cffice for questioning. He again advised petitioner of his

Miranda rights and petitioner signed a card stating those

rights. Chief Hamilton then proceeded to interrogate

petitioner and obtained conflicting versions of the shoot-

ing which were used against petitioner at trial. He

terminated the interview at 6:55 p.m. when petitioner’s

counsel called. Chief Hamilton testified in the suppression

hearing that he was aware that Office Pressler had advised

petitioner of his rights, but he was not aware of peti-

tioner’s response. He also knew that petitioner hadn't

made any statements to Officer Pressler, but he didn’t

know why petitioner had made no statement. Finally,

Chief Hamilton testified that he was not aware that

petitioner had asked for an attorney.

On the basis of the above evidence, the trial judge

ruled:

| cannot say as a matter of law that

the defendant’s constitutional rights were

violated in regards to the second interro-

gation, although the Court has expressed

its personal opinion about police practices

circumventing constitutional rights.

The law in Ohio is very clear. The

possible Miranda interrogation by another

officer after refusal is permissible and is

so in this case and Chief Hamilton may

testify in that regard.

The Court of Appeals affirmed the trial court ruling

reasoning that Miranda v. Arizona, 384 U.S. 436 (1966)

did not establish a per se rule excluding the admission of

statements made during custodial interrogations of a

defendant after he asserted his right to counsel. They

relied upon Michigan v. Mosley, 423 U.S. 96, 104 (1975)

in which the United States Supreme Court stated:

Admissibility of statements obtained after

the person in custody has decided to

remain silent depends under Miranda on

A-18

whether his right to cut off questioning

was scrupulously honored.

The Court of Appeals discussed the facts as follows:

Upon examination of the record in the

instant cause, we are convinced that the

police officers who questioned the appel-

lant after his arrest displayed the

necessary scrupulous regard for his con-

stitutional rights. When the appellant first

indicated upon his arrival at the station

house that he would not speak at that

time without the assistance of counsel, it

is uncontroverted that the officer who

had earlier read him his rights immediately

cut off any dialogue which could have

been construed as an interrogation, and

confined the appellant to a jail cell. It

was not until approximately ninety

minutes later that the appellant was next

confronted by a second law enforcement

official.

At that time, he was taken into a room

where he sat without direct physical res-

traint in a chair directly across a desk

from the Franklin, Ohio Chief of Police.

The Chief testified that the appellant

spoke coherently, and was without any

apparent physical or mental disability.

In addition, there is nothing in the record

to suggest that the appellant was then

acting under any shadow of threat or that

he was otherwise motivated by any form

A-19

of inducement. After the Chief had again

advised the appellant of his Miranda rights

and the appellant had indicated that he

understood them, the appellant signed the

waiver form and proceeded to make the

inculpatory statements w hout any men-

tion of exercising his right to counsel.

Under such circumstances, we cannot say

that the conduct of the police officers was

in derogation of the appellant’s constitu-

tional rights.

It is thus our view that disposition of

the instant cause is not controlled by our

prior decision in Korn, supra. A careful

reading of the facts in Korn discloses that

the defendant in that case was subjected

over a period of severa! days following his

arrest to a series of custodial interroga-

tions during which he_ repeatedly

attempted to invoke his right to the

assistance of counsel. During that time, it

was apparent that some of the interroga-

tion sessions were commenced either

without the issuance of Miranda warnings

or by a defective recitation of those

warnings. It was further clear that the

interrogating officers engaged in forms

of harassment and deception which served

only to heighten the coercive atmosphere

ieading to the defendant’s confession.

Given such circumstances, this Court con-

cluded that ‘‘the confession of guilt...

should have been suppressed since it

followed custodial interrogations held in

A-20

disregard of [the defendant's] election to

have the assistance of counsel.’’ Korn,

supra, at 16. On the basis of the facts as

set forth above, however, the case is

clearly distinguishable from the situation

confronting us in the instant cause.

We are similarly unpersuaded by the

appellant’s contention that the State

failed to demonstrate at trial that he had

manifested a waiver of his relevant con-

stitutional rights before making the

statements to the police officer. In light

of the appellant’s execution of the waiver

form and the other circumstances atten-

dant to his interrogation which are

described above, we are convinced that

the judge presiding at trial was entitled to

conclude that he had, in fact, knowingly

and voluntarily waived his Miranda rights

upon an independent and rational reassess-

ment of his interests.© See, North

Carolina v. Butler (1979), US.

, 99 S.Ct. 1755; Brewer v. Williams

(1977), 430 U.S. 387, 97 S.Ct. 1232,

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

ee ; State v. Reese, No.

C-2-79-596, unreported (1st Dist. 1980).

In Miranda, the United States Supreme Court stated:

If the interrogation continues without the

presence of an attorney and a statement is

taken, a heavy burden rests on the govern-

ment to demonstrate that the defendant

A-21

knowingly and intelligently waived his

privilege against self-incrimination and his

right to retained or appointed counsel.

Id. at 475. The Supreme Court further held:

If the individual states that he wants an

attorney, the interrogation must cease

until an attorney is present. At that time,

the individual must have an opportunity

to confer with the attorney and to have

him present during any subsequent ques-

tioning.

384 U.S. at 474 (emphasis added).

In Michigan v. Mosley, 423 U.S. 96 (1975), the

Supreme Court dealt with the situation where a defendant

asserted his right to remain silent but did not request to

consult an attorney. He was later questioned by law

enforcement officers. The Court rejected a “per se

proscription of indefinite duration upon any further

questioning by any police officer on any subject, once

the person in custody has indicated a desire to remain

silent.” 423 U.S. a 102-103. However, the Court noted

in a footnote that Miranda

. . . distinguished between the procedural

safeguards triggered by a request to re-

main silent and a request for an attorney

and directed that ‘the interrogation must

cease until an attorney is present’ only

‘li] f the individual states that he wants

an attorney.’

A-22

Id. at 104, n. 10. Theclear implication is that Michigan

v. Mosley, supra does not apply if the accused asserted

his right to counsel. In the present case, petitioner

requested counsel, and hence, Michigan v. Mosley, supra

is inapplicable.

Consequently, the Ohio Court of Appeals’s decision,

relying on Mosley, that petitioner waived his Miranda

right to counsel was based upon an incorrect application

of a constitutional standard. Thus, the Court of Appeals’s

finding that petitioner’s confession was voluntary is

entitled to no weight in the present proceedings. See,

Edwards v. Arizona, 451 U.S. at 482; Brewer v. Williams,

430 U.S. 387, 404 (1977); Faretta v. California, 422

U.S. 806, 835 (1975); Johnson v. Zerbst, 304 U.S. 458

(1938).

While in the present case it is arguable that peti-

tioner’s Sixth Amendment right to the appointment of

counsel had not yet accrued because there is no evidence

a formal charge had been filed against him and he had not

yet appeared before a judicial officer, see, Brewer v.

Williams, 430 U.S. at 398; Clark v. Jago, 676 F.2d 99,

1111 at n. 16 (6th Cir. 1982), under Miranda he had

a right--which he exercised--to an attorney prior to any

questioning. See, Edwards v. Arizona, 451 U.S. at 484-

485.' Several decisions following Miranda have made it

L The Court is cognizant of the fact that Edwards v. Arizona, supra

was decided after petitioner's trial and that one judge of the United States

Court of Appeals for the Sixth Circuit intimated in dicta that he did not

believe that Edwards would apply retroactively. United States v. Holliday,

F.2d , (6th Cir. 1981) (slip opinion, p. 3 n. 1). Nonetheless,

this Court is of the opinion that Edwards does not represent a change in

the law as enunciated in Miranda. The Eighth Circuit in Stumes v. Solem,

671 F.2d 1150, 1155-1158 (8th Cir.) applied Edwards retroactively.

A-23

clear that custodial interrogation must cease as soon as a

suspect invokes his right to counsel. Combs v. Wingo,

465 F.2d 96 (6th Cir. 19972); Thompson v. Wainwright,

601 F.2d 768 (5th Cir., 1979); United States v. Massey,

550 F.2d 300 (5th Cir. 1977); McKeamer v. United

States, 32 Crim L. Rptr. 2163, 2164 (D.C. Ct. App.

October 27, 1982). However, at least one circuit has

rejected a per se rule that excludes all statements made

by an accused after he has asserted his right to counsel.

United States v. Rodriquez-Gostelum, 569 F.2d 482

(9th Cir.), cert. denied, 436 U.S. 919 (1978). In its most

recent decision on this subject, the United States Court

of Appeals for the Sixth Circuit held that:

The burden is on the State to establish

waiver in every case in which it seeks to

introduce a statement taken without pre-

sence of counsel. That burden becomes

far more difficult, if not impossible, to

sustain when the record shows that a

request for counsel was made which was

not honored before questioning continued.

Maglio v. Jago, 580 F.2d 202, 205 (6th Cir. 1978).

In Edwards v. Arizona, supra, the Supreme Court

considered the issue squarely presented in the instant

case: When may an accused be interrogated in custody

after he has invoked his right to counsel? First, the Court

held that,

. Waivers of counsel must not only be

voluntary, but constitute a knowing and

intelligent relinquishment or abandon-

ment of a known right or privilege. ..

A-24

451 U.S. at 483. The Court continued,

. we now hold that when an accused

has invoked his right to have counsel

present during custodial interrogation, a

valid waiver of that right cannot be estab-

lished by showing only that he responded

to further police-initiated custodial inter-

rogation even if he has been advised of

his rights. We further hold that an

accused, such as Edwards, having expressed

his desire to deal with the police only

through counsel, is not subject to further

interrogation by the authorities until

counsel has been made available to him,

unless the accused himself initiates

further communication exchanges or

conversations with the police.

451 U.S. at 484-485.

Applying the above standard to the present case, the

Court concludes that petitioner’s right to counsel under

Miranda was violated since he invoked his right to have

counsel present during questioning, and shortly there-

after, interrogation was resumed without counsel present.

Counsel was not made available to him, and petitioner

did not initiate the second interrogation. Moreover, it

is clear that the police did not “‘scrupulously honor’’ his

request for an attorney. Less than two hours after he

requested counsel, he was subjected to an interrogation

without an attorney present. Furthermore, the fact that

petitioner signed a card that had the Miranda warnings

displayed on it is insufficient to meet the government's

heavy burden of showing a waiver of the right to counsel.

A-25

Maglio v. Jago, supra. Under these circumstances, the

Court HOLDS that petitioner’s right to have counsel

present during a custodial interrogation was violated.

See, McKeamer v. United States, 32 Crim. L. Rptr. at

2164.

Although there was a Miranda violation, the Court

must still determine whether the admission at trial of

the statements taken contrary to Miranda constitutes

harmless error. Milton v. Wainwright, 407 U.S. 372

(1972); United States v. Charlton, 565 F.2d 86, 92

(6th Cir. 1977), cert. denied sub. nom. Jacek v. United

States, 434 U.S. 1070 (1978); Chapman v. California,

386 U.S. 18, 23-24 (1967). The United States Supreme

Court held in Chapman v. California, 386 U.S. at 24 that,

. . . before a federal constitutional error

can be held harmless, the court must be

able to declare a belief that it was harm-

less beyond a reasonable doubt.

A short review of the evidence is necessary to

resolve this issue. Petitioner was tried for murdering his

wife on the afternoon of December 2, 1978. The victim

died as a result of a single bullet wound in the chest, and

the bullet was ballistically shown to have been fired from

a gun that petitioner purchased on the day of the shoot-

ing. The shot was fired from a range of about 4 feet. The

principal issue of the case was whether petitioner shot his

wife purposely or accidentally.

After the shooting, petitioner went to Charles

Stephens’ house and made comments heard by Mr.

Stephens, his wife Sandra Stephens, and Mrs. Stephens’s

A-26

two sisters, Verla Raney and Phyllis Raney. Mr. Stephens

testified that he was sleeping before petitioner came to

his house, but he awoke and heard petitioner say, ‘Sandy,

go check on her. If she’s hurt bad, | have a murder rap.”

Sandra Stephens testified petitioner stated that he

accidentally shot his wife and that he asked her and her

sisters to go check on his wife. Verla Raney testified that

when petitioner entered the house, he said, ‘““Sandy, you

got to hide me. | just shot my wife.” She also recalled

his later statement that “[i]f she was dead, he would

take a murder rap.”’ Phyllis Raney testified that peti-

tioner said he accidentally shot his wife.

Officer Ronald Pressler testified that he arrived at

the scene and discovered the victim laying against the

storm door. He proceeded to the Stephens’ home where

he found petitioner who stated to him that he shot his

wife. Dr. Paul Jolly, a deputy coroner, ascertained that

the victim died of a bullet wound to the heart which

also passed through her lungs. Finally, the prosecution

presented evidence that petitioner purchased the murder

weapon on the day of the shooting.

The defense case rested primarily on the testimony

of the petitioner. He testified that on the day of the

homicide, he did not go to work because his stomach

felt bad. That morning, petitioner testified, his wife

“seemed like she was upset or a little mad: about some-

thing.”” She “‘took some clothes out of our closet and

went and put them in the back seat of the car.” Peti-

tioner asked her to go shopping with him, and she

declined. Around noon he left the house to do some

shopping. While shopping he went to a Western Auto

A-27

Store where he purchased a gun for target practice.”

When he purchased the gun, he was not given any in-

structions on how to use it. Petitioner testified that he

did have prior experience with guns, including handguns,

but he couldn’t remember the caliber of the handguns.

He drove home, and, in his driveway, he decided to load

the gun to see how it worked. He cocked the gun, then

began loading it, and he accidentally fired a shot which

went through the floorboard of his car. Next, he took

the gun into the house, and laid it on a table. His wife

came into the room and sat across from him. She asked

him where he got the gun and told him he should put it

away before he got hurt. Petitioner further testified

that he then cocked the gun preparatory to unloading

it when it fired killing his wife. He ran to a neighbor’s

house and told them to call the emergency squad be-

cause he accidentally shot his wife.

Within this context, the Court must consider the

impact of Chief Hamilton’s testimony regarding peti-

tioner’s statements to him. Chief Hamilton testified

that petitioner initially told him that his wife shot

herself but when he, Chief Hamilton, confronted peti-

tioner with the fact that two rounds were fired from the

gun, he changed his story. Then petitioner said that there

was an argument and a struggle over the gun during which

he shot his wife. His final comment was, “If you let me

go home, I'll tell you the truth.”

2 Petitioner testified that he went to the Western Auto store twice.

Once around noon, and the second time was between 3:00 and 3:30 p.m.

He purchased the gun on the second trip. The homicide occurred about

4:00 p.m.

A-28

The Court concludes that the admission of Chief

Hamilton’s testimony was not harmless error. The key

issue in the case was whether the shooting was accidental.

There were no eyewitnesses to the shooting and the

testimony concerning petitioner’s statements after the

shooting were conflicting. On these facts, the introduc-

tion of the contradictory versions of the shooting peti-

tioner gave Chief Hamilton might have decisively in-

fluenced the jury. And while petitioner’s comments

could have been used to impeach him as a witness, they

were not admissible for the truth of the matter stated in

the prosecutor's case-in-chief, because they were obtained

in violation of Miranda.

WHEREUPON, the Court HOLDS that the petition

is meritorious; and, therefore, it is GRANTED. The

Clerk of Court shall enter JUDGMENT for petitioner.

The writ of habeas corpus will issue sixty (60) days

from the date of the filing of this Opinion and Order

unless, within such time, the State initiates proceedings

to retry petitioner. If a notice of appeal from the judg-

ment entered in this case is filed, the writ of habeas

corpus will not issue until sixty (60) days after the

appellate court’s mandate is filed in this Court.

/s/ Robert M. Duncan

Robert M. Duncan, Judge

United States District Court

A-29

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

WARREN COUNTY, OHIO

STATE OF OHIO,

Plaintiff-Appellee,

vs.

CHARLES R. ROSE,

Defendant-Appellant.

NO. 382

DECISION

Filed August 27, 1980

Mr. Morris J. Turkelson, Prosecuting Attorney, Law

Building, 313 Warren Street, Lebanon, Ohio 45036,

for Plaintiff-Appellee,

Messrs. Holbrock, Jonson, Bressler & Houser, Hugh D.

Holbrock and Michael D. Shanks of counsel, 315 South

Monument Avenue, Hamilton, Ohio 45011, for Defen-

dant-Appellant.

PER CURIAM.

This cause came on to be heard upon the appeal,

the transcript of the docket, journal entries and original

papers from the Court of Common Pleas of Warren

County, Ohio, the transcript of the proceedings, the

assignments of error, and the briefs and oral arguments

of counsel.

A-30

On May 17, 1979, following a four-day trial in the

Court of Common Pleas of Warren County, the defen-

dant-appellant, Charles Rose, was found guilty by a

jury of the murder of his wife, Jewell, in violation of

R.C. 2903.02. It is from the judgment subsequently

entered against him in that court and the sentence

imposed thereon' that the instant appeal is taken; the

appellant has given us three assignments of error for

review.

The first of the appellant’s three assignments

challenges, on constitutional grounds, the admission into

evidence of certain statements made by the appellant to

the Chief of Police of the Franklin, Ohio, police depart-

ment during the course of a custodial interrogation

initiated after the appellant’s arrest.2 It is argued that

such statements should have been excluded at trial

because they were given without a waiver in violation

of the appellant’s rights as defined in Miranda v. Arizona

(1966), 384 U.S. 436, 86 S. Ct. 1602, and Michigan v.

Mosley (1975), 423 U.S. 96, 96 S. Ct. 321.

The facts and circumstances attendant to the

appellant’s interrogation as they were developed in the

proceedings below show that the appellant was arrested

by an officer of the Franklin, Ohio, police department on

the afternoon of December 2, 1978, at approximately

4:30 p.m. The arrest was made at a residence within the

immediate vicinity of the scene of the killing for which

the appellant was later charged. After being informed

by the appellant that he had just shot his wife, the officer

transported him to a police station house where the

appellant was read his Miranda rights. Upon being

apprised of his rights, the appellant indicated to the

officer that he would not respond to any questions from

him until he had an opportunity to retain an attorney.*

The appellant was thereupon placed in a jail cell at

the station house until approximately 6:25 p.m. on that

same day, at which time, he was escorted into an office

occupied by the Chief of Police of Franklin, Ohio. Before

embarking upon any form of inierrogation,* the Chief

informed the appellant that his wife was dead and that he

was being charged with her murder. He also readvised the

appellant of his Miranda rights, and asked him if he

understood them. The appellant replied that he under-

stood his rights, and proceeded to sign a waiver-of-rights

form. He then began a patently contradictory explana-

tion of the circumstances surrounding his wife’s death,

the substance of which he later sought to exclude from

evidence at trial.®

The appellant’s argument that the statements at the

station house were obtained in violation of his constitu-

tional rights is bottomed first upon the blanket assertion

that any statement made in a custodial setting after the

accused has expressed an intent to exercise his right to

counsel is constitutionally infirm. In formulating such a

rule, he relies primarily on Miranda v. Arizona, supra, and

State v. Korn, No. CA 77-07-0084, unreported (1st

Dist. 1979).

Although it :s true that Miranda contains language

tending to support the appellant’s argument in support of

a per se rule, it is equally clear in light of subsequent

interpretations of that decision that such a rule has not

yet been adopted. See Michigan v. Mosley (1975), 423

U.S. 96, 98 S. Ct. 321; White v. Finkbeiner (7th Cir.

1979), 611 F.2d 186; United States v. Rodriquez-

Gastelum (9th Cir. 1978), 569 F.2d 482. Cf. State v.

Black (1976), 48 Ohio St. 2d 262, 358 N.E.2d 551,

vacated and remanded on other grounds, 438 U.S. 910.

A-32

In Mosley, supra, the Supreme Court of the United

States, per Stewart, J., rejected a similar per se approach

to the resumption of a custodial interrogation after the

accused has invoked his right to remain silent by recogniz-

ing that such a posture “would transform the Miranda

safeguards into wholly irrational obstacles to legitimate

police investigative activity, and deprive suspects of an

opportunity to make informed and intelligent assess-

ments of their interests.” 423 U.S. at 102. Instead, the

Court concluded that:

‘‘Admissibility of statements obtained

after the person in custody has decided to

remain silent depends under Miranda on

whether his right to cut off questioning

was scrupulously honored.”’ 423 U.S. at

104.

Upon examination of the record in the instant

cause, we are convinced that the police officers who

questioned the appellant after his arrest displayed the

necessary scrupulous regard for his constitutional rights.

When the appellant first indicated upon his arrival at the

station house that he would not speak at that time with-

out the assistance of counsel, it is uncontroverted that

the officer who had earlier read him his rights immediately

cut off any dialogue which could have been construed as

an interrogation, and confined the appellant to a jail cell.

It was not until approximately ninety minutes later that

the appellant was next confronted by a second law

enforcement official.

At that time, he was taken into a room where he sat

without direct physical restraint in a chair directly across

a desk from the Franklin, Ohio, Chief of Police. The

A-33

Chief testified that the appellant spoke coherently, and

was without any apparent physical or mental disability.

In addition, there is nothing in the record to suggest that

the appellant was then acting under any shadow of threat

or that he was otherwise motivated by any form of

inducement. After the Chief had again advised the appel-

lant of his Miranda rights and the appellant had indicated

that he understood them, the appellant signed the waiver

form and proceeded to make the inculpatory statements

without any mention of exercising his right to counsel.

Under such circumstances, we cannot say that the con-

duct of the police officers was in derogation of the appel-

lant’s constitutional rights.

It is thus our view that disposition of the instant

cause is not controlled by our prior decision in Korn,

supra. A careful reading of the facts in Korn discloses

that the defendant in that case was subjected over a

period of several days following his arrest to a series of

custodial interrogations during which he _ repeatedly

attempted to invoke his right to the assistance of counsel.

During that time, it was apparent that some of the

interrogation sessions were commenced either without

the issuance of Miranda warnings or by a defective

recitation of those warnings. It was further clear that

the interrogating officers engaged in forms of harass-

ment and deception which served only to heighten the

coercive atmosphere leading to the defendant’s confes-

sion. Given such circumstances, this Court concluded

that “the confession of guilt. . .should have been sup-

pressed since it followed custodial interrogations held in

disregard of [the defendant’s] election to have the

assistance of counsel.’’ Korn, supra, at 16. On the basis

of the facts as set forth above, however, the case is clearly

distinguishable from the situation confronting us in the

instant cause.

2

We are similarly unpersuaded by the appellant's

contention that the State failed to demonstrate at trial

that he had manifested a waiver of his relevant constitu-

tional rights before making the statements to the police

officer. in light of the appellant’s execution of the

waiver form and the other circumstances attendant to

his interrogation which are described above, we are

convinced that the judge presiding at trial was entitled to

conclude that he had, in fact, knowingly and voluntarily

waived his Miranda rights upon an independent and

rational reassessment of his interests.© See North Carolina

v. Butler (1979), U.S , 99 S. Ct. 1755;

Brewer v. Williams (1977), 430 U.S. 387, 97 S. Ct.

1232, State v. Scott (1980), 61 Ohio St. 2d 155,

N.E.2d ; State v. Reese, No. C-790596, unreported

(1st Dist. 1980).

The appellant’s first assignment of error is, accord-

ingly, without merit.

The appellant next asserts in his second assignment

that the finding of guilt upon the charge of murder was

against the manifest weight of the evidence adduced at

trial. He reasons specifically that the evidence was in-

sufficient as a matter of jaw to establish that he actea

purposely within the meaning of Ohio’s murder statute

when he fired the shot that resulted in his wife’s death.

To act with purpose in this State is to have a specific

intention to cause a certain result. R.C. 2901.22(A).

Such a mental state must generally be proven at trial by

resort to circumstantial evidence especialiy where, as

here, the actor does not specifically state his intentions

before undertaking a particular course of conduct. State

v. Johnson (1978), 56 Ohio St. 2d 35, 381 N.E. 2d 637;

State v. Huffman (1936), 131 Ohio St. 27, 1 N.E.2d 313.

The appellant, alluding to the rule of State v. Kulig

(1974), 37 Ohio St. 2d 157, 309 N.E.2d 897, maintains

that there was sufficient testimony at trial to raise a

reasonable theory of his innocence and, thus, to preclude

an adverse finding on the element of intent bottomed

only upon circumstantial evidence. He refers us specific-

ally to his own testimony during which he explained to

the jury that the gun from which the fatal shot emanated

accidentally discharged as he was attempting to unload it.

In Kulig, supra, it was held that when circumstantial

evidence is relied upon to prove an essential element of

irreconciliable an offense, it must be with any reasonable

theory of the accused’s innocence. The Supreme Court of

Ohio has subsequently explained the Ku/ig rule in the

following manner:

“(T]he determination of reasonableness

includes a determination of whether the

hypothesis is reasonable in view of the

weight and credibility that the jury gives

to the evidence.

[O] nce the jury has reached its decision,

an appellate court, in a case where cir-

cumstantial evidence is relied upon, will

reverse only where the evidence is insuffi-

cient as a matter of law to enable the jury

to exclude a reasonable hypothesis of

innocence.’’” State v. Graven (1975), 54

Ohio St. 2d 114, 119, 374 N.E.2d 1370,

1373.

Applying the rule to the evidence entered upon the

record in-the instant cause, we are convinced that the

jury was entitled to discard the appellant’s hypothesis of

an accidental shooting in favor of its finding that he

intentionally shot his wife. There was persuasive

evidence adduced at trial showing that the victim had

ordered the appellant out of their home during a

domestic argument on the morning of the day that she

was killed. After the argument, she assembled a large

quantity of the appellant’s clothing and placed it in the

back seat of his car.

Several hours later, the appellant walked into a

commercial establishment in Franklin, Ohio, known

as The Western Auto Store and purchased a .22 caliber

revolver as well as a box containing fifty rounds of live

ammunition. After making the purchase, he returned

to his home and, while sitting in his automobile which

was parked in the driveway adjoining the house, he

loaded the weapon with eight or nine bullets. He then

carried the revolver into the house, and fired from a

distance of approximately four feet a single shot which

pierced his wife’s heart and a part of her left lung.

Such a course of conduct, in our minds, sufficiently

manifested an intention to kill the victim.. We are further

persuaded that the jury was entitied to discredit the

appellant’s characterization of the shooting as an

accidental occurrence in view of its inconsistency with his

own earlier statements® and of his conceded familiarity

with the use of firearms.2 Accordingly, we conclude that

the appellant’s second assignment of error is without

merit.

The appellant’s final assignment of error reads as

follows:

“It was prejudicial error for the trial

court to instruct the jury to the effect

that the law presumes that a person

intends the ordinary consequences of his

voluntary acts; such instruction is a viola-

tion of the Fourteenth Amendment due

process requirement that the State prove

every element beyond a_ reasonable

doubt.”

At the conclusion of the trial, the judge presiding,

while charging the jurors on the offense of murder, gave

the following instruction with respect to the element of

purpose:

“[A] person acts purposely when it is

his specific intention to cause a certain

result. So, it must be established in this

case at the time in question there was

present in the mind of the defendant a

specific intention to kill Jewell Rose.

Purpose is a decision of the mind to do

an act with the conscious objective of

producing a specific result. To do an act

purposely is to do it intentionally and not

accidentally.

Purpose and intent mean the same

thing. The purpose with which a person

does an act is known only to himself un-

less he expresses it to others or indicates

it by his conduct. The purpose with

which a person does an act or brings

about a result is determined by you from

the manner in which it is done, the means

and the weapon used, and all the other

facts and circumstances in evidence.”

T.p. 583

The judge then repeated the instruction after the jurors

had retired for deliberations upon their request that he

clarify the distinctions between murder and negligent

homicide. '®

It is our view that the instruction given on the ele-

ment of intent in the instant cause is not laden with the

same fatal defect which was found in Sandstrom v.

Montana (1979), US. , 99 S. Ct. 2450, the

case relied upon by the appellant. In Sandstrom, unlike

the instant cause, the judge included within his instruc-

tions to the jury a statement that “the law presumes that

a person intends the ordinary consequences of his volun-

tary acts.’” The Court concluded that such an instruction

was in violation of the defendant’s Fourteenth Amend-

ment rights because the jury may have construed it to

establish a conclusive presumption in favor of the prose-

cution or to shift the burden of persuasion to the defen-

dant.

Here, it is clear, however, that the judge’s instruc-

tions did not implicate either a shifting burden or a

conclusive presumption. The jury was told that the State

had the burden of proving each element of the offense

beyond a reasonable doubt and that it was their respon-

sibility to assess the evidence for the purpose of establish-

ing whether the State had met its burden on each ele-

ment, including the element of intent.

A-39

The appellant’s third assignment of error is without

merit.

The judgment of the Court of Common Pleas of

Warren County, Ohio. is affirmed.

SHANNON, P. J., KEEFE and CASTLE, J. J.

The appellant was ordered to pay the costs of his

prosecution and to serve an indeterminate term of

confinement of fifteen years to life in the Ohio

Penitentiary.

The appellant failed to file a pretrial motion to

suppress the statements despite the fact that he was

made aware of them in the State’s timely response

to his pretrial demand for discovery. He was relieved

of the effect of the waiver of error imposed by

Crim. R. 12(G), however, when the judge presid-

ing at trial concluded in medias res that there had

been good cause shown for conducting a supression

proceeding at that time.

The officer described his encounter with the appel-

lant in the following manner at trial:

“Well, he was advised that he had the

right to have an attorney present and he

stated to me he did not want to talk to

me at that time until he had an attorney.”’

When questioned by defense counsel on the subject

of his awareness of the earlier colloquy between the

arresting officer and the appellant with respect to

the appellant's Miranda rights, Chief Hamilton

indicated only that he had been told that the

appellant had not said anything about his wife’s

death.

We note that the appellant implicated himself in

the shooting on at least two occasions prior to his

making of the custodial statements. He told a

neighbor immediately after the shootirg that he

had accidentally shot his wife and he later informed

a police officer prior to his arrest simply that he

had shot his wife. Such statements were received

into evidence at trial without objection.

Stated succinctly, our conclusions, when taken

together, stand for the proposition that a suspect in

a custodial environment may, under appropriate

circumstances, engage in a waiver of his Miranda

rights and make an inculpatory statement later

admissible at trial even after he has initially refused

to talk to a police officer without the presence of

counsel.

This Court recently dealt with the question of what

constitutes a reasonabie theory of innocence by

resort to the Graven rationale in State v. Payne, No.

C-790257, unreported (1st Dist. 1980).

The appellant told Chief Hamilton after he had been

arrested both that his wife had shot herself and that

she had been shot accidentally during a struggle with

him over the gun. Other statements appear at Note

5, supra.

10.

The appellant admitted upon cross-examination that

he had previously owned shotguns as well as other

types of handguns.

The appellant had been indicted on a single count of

aggravated murder in violation of R.C. 2903.01.

After the State presented its evidence at trial, how-

ever, the judge presiding granted a motion for

acquittal on the charged offense on the ground

that the evidence was insufficient to support a find-

ing of prior calculation and design. The case was

accordingly submitted to the jury on the lesser

included offenses of murder and negligent homicide.

PLEASE NOTE:

The Court has placed of record its own entry in

this case on the date of the release of this Decision.

A-42

CERTIFICATE OF SERVICE

| hereby certify that the requisite number of copies

of the foregoing Petition for Writ of Certiorari have been

served on Respondent Charles E. Rose by forwarding

such copies through the office of his counsel, John A.

Crist, Esq., 1605 First Avenue, Middletown, Ohio 45042,

by United States Mail, postpaid, this day of

April, 1984. | further certify that all parties required

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

is the Chillicothe Correctional Institute at Chillicothe,

Ohio.

RICHARD DAVID DRAKE

Assistant Attorney General