# Petition for Writ of Certiorari — Tate v. Rose

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1984
- **Citation:** 467 U.S. 1249

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2764%3A1. Public record. Not legal advice.