Opposition Brief — Tate v. Rose

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MAY 24 1984

No. 83-1747 ALEXANDER L. STEVAS,

SE RK =

In The

Supreme Court of the United States

October Term, 1983

tY.

ARTHUR R. TATE, JR.,

Superintendent Chillicothe Correctional Institute,

Petitioner,

vs.

CHARLES E. ROSE,

., —/

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

“

Crist & Barr

JoHN A. CRIST

Counsel of Record

Eric JAMES Barr

Assisting Partner

1523 First Avenue,

Middletown, Ohio 45042

(513) 423-9439

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

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QUESTION PRESENTED

Whether a State court’s conviction involving conflict-

ing statements of the accused, and used in the State’s case

in chief, decided prior to Edwards v. Arizona, 451 U.S. 477

(1981), but not yet final on the date Edwards was decided,

and thus falling under the rules governing retroactivity

as set forth in Umtted States v. Johnson, 457 U.S. 537

(1982), can be upheld and a Federal habeas corpus which

has been granted can be vacated, in light of the treatment

of Edwards by the decision in Solem v. Stumes, — U.S.

—, 104 S.Ct. 1338, 52 U.S.L.W. 4307 (February 29, 1984).

TABLE OF CONTENTS

Pages

Opinions Below 1

Jurisdiction 2

Constitutional Provisions Involved 2

Statement of the Case 3

Argument Against Granting Certiorari 10

TABLE OF AUTHORITIES

CASES

Edwards v. Arizona, 451 U.S. 477 (1981) — 4, 5, 10, 11

Fare v. Michael C., 442 U.S. 707 (1979) 11

' Michigan v. Mosley, 423 U.S. 96 (1975) 11

Miranda v. Arizona, 384 U.S. 486 (1966) 0. a, 4, 8, 12

Rhode Island v. Innis, 446 U.S. 291 (1980) 11

Rose v. Engle, 722 F. 2d 1277 (6th Cir. 1983) «1,5

Solem v. Stumes, — U.S. —, 104 S. Ct. 1338, 52

U.S.L.W. 43807 (February 29, 1984) 6, 10, 11

United States v. Johnson, 457 U.S. 537 (1982) —.5, 10, 11

STATUTES

Ohio Revised Code Section 2903.01 (A)

28 U.S.C. Section 1254 (1) 2

CoNnSTITUTION

Amendment V, Constitution of the United States 0. 2

Amendment VI, Constitution of the United States ........ 2

Section I, Amendment XIV, Constitution of the

United States 3

No. 83-1747

fa’

In The

Supreme Court of the United States

; October Term, 1983

ARTHUR R. TATE, JR.,

Superintendent Chillicothe Correctional Institute,

Petitioner,

vs.

CHARLES E. ROSE,

Respondent.

ray

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

fy.

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

OPINIONS BELOW

The decision of the United States Court of Appeals

for the Sixth Circuit, 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).

fo)

JURISDICTION

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

The decision of the United States Court of Appeals for

the Sixth Circuit was entered on November 28, 1983. The

Court denied a motion for rehearing and rehearing en

bane, and this decision was entered on January 26, 1984.

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 pri-

vate property be taken for public use, without just

compensation.

This case also involves Amendment VI to the Consti-

tution of the United States:

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall

have been committed, which district shall have been

previousy ascertained by law, and to be informed of

the nature and cause of the accusation; to be con-

fronted with the witnesses against him; to have com-

pulsory process for obtaining witnesses in his favor,

and to have the Assistance of Counsel for his defense.

This case also involves Section I of Amendment XIV

to the Constitution of the United States:

SECTION I. All persons born or naturalized 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 immun-

ities 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 jurisdiction the equal protection of the

laws.

STATEMENT OF THE CASE

Respondent, Charles E. Rose, was indicted by the

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

aggravated murder in violation of Ohio Revised Code

Section 2903.01 (A). <A jury trial was had, and respond-

ent was found guilty of murder, a lesser included offense.

Respondent was sentenced on May 30, 1979 to a term of

15 years to life, where he has been incarcerated since at

the correctional institution at Chillicothe, Ohio, conducting

himself as a model prisoner.

Respondent appealed the decision to the First District

Court of Appeals for Warren County, Ohio, and his first

assignment of error contended that the inconsistent state-

ments were entered contrary to Miranda v. Arizona, 384

U.S. 436 (1966). The appellate court reaffirmed the de-

cision of the trial court in allowing the inconsistent state-

ments into evidence.

Respondent thereafter sought discretionary review

with the Supreme Court of Ohio. The motion for leave

to appeal was overruled on March 18, 1981. Edwards v.

Arizona, 451 U.S. 477 (1981), was decided while respond-

ent’s case was still open to file a petition for a writ of

certiorari.

Respondent then filed a petition for a writ of habeas

corpus with the United States District Court for the

Southern District of Ohio, Eastern Division. The District

Court granted the petition, finding that the rule enunci-

ated in Edwards v. Arizona, supra, was violated when

Chief Hamilton, on his own initiative, and less than 2

hours after the first interrogation, reinterrogated re-

spondent after respondent had already requested an at-

torney. At the time of this second interrogation, respond-

ent was having severe stomach problems which later ne-

cessitated hospitalization. The District Court held that

the Miranda rights of respondent were violated by stating

“... 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 thereafter questioning was resumed with-

out counsel present. . .. Moreover, it is clear that the

police did not ‘scrupulously honor’ his request for an

attorney.” (A-24)

The District Court did examine the Edwards v. Ar-

izona, supra, decision and felt that it was not new law.

However, the Court also examined prior law and found

that, under Miranda and its progeny, that a heavy burden

rests on the government to show that a defendant know-

ingly and intelligently waived his right to counsel. The

District Court felt that respondent’s rights were not

“serupulously honored” due to the State re-interrogating

respondent while he was obviously sick and less than two

hours after he had already requested an attorney.

The District Court then found that the error was

not harmless because the key issue in the case was whether

or not the shooting was accidental, and the comments of

respondent which were udmitted in the State’s case in chief

which might have decisively influenced the jury.

Petitioner then appealed to the United States Court

of Appeals for the Sixth Cireuit. This Court, by opinion

dated November 28, 1983, upheld the district court’s grant

of the writ of habeas corpus, in Rose v. Engle, 722 F. 2d

1277 (6th Cir. 1983). The Sixth Circuit based its decision

on United States v. Johnson, 457 U.S. 537 (1982), wherein

the rules of retroactivity set forth in that case were ap-

plied to Edwards v. Arizona, supra. Edwards was found

to be applicable to the case of respondent, under United

States v. Johnson, supra, because his case was not yet

final when Edwards was decided. The Sixth Circuit also

felt that Edwards did not signal a clear break with the

past, especially in the jurisdiction of the Sixth Cireuit.

(A-7). Also, as noted by the Sixth Circuit, United States

v. Johnson, supra, specifically states:

“By final we mean where the judgment of conviction

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.” .. . 102 S. Ct. at 2583

n. 8.

(Emphasis added by alteration of quote). (A-9)

On January 26, 1984, the Sixth Cireuit denied peti-

tioner’s motion for rehearing and rehearing en bance.

On February 10, 1984, the Sixth Circuit denied peti-

tioner’s motion to stay the mandate pending certiorari.

Petitioner’s motion contained substantially the same is-

sues in the petition before this Supreme Court now. The

mandate of the Sixth Circuit was issued on February 13,

1984. Petitioner’s application for a stay of the,’mandate,

directed to Justice O’Connor, was denied on = aeeary 20,

1984.

On February 29, 1984, this Supreme Court decided

Solem v. Stumes, — U.S. —, 104 8. Ct. 1338, 52 U.S.L.W.

4307 (February 29, 1984).

The evidence in respondent’s case is conflicting and

subject to different interpretations. The facts show that

respondent was married to Jewell Rose on July 1, 1977.

(T. 448). 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 ear. This happened several times before and was

not unusual. Later, after the spat, the clothes would go

back into the house. (T. 452). After his wife loaded his

clothing into the car, Respondent left the house and went

shopping for a washer and dryer and other gifts. (T. 456-

458).

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

ent entered the Western Auto Store in Franklin, Ohio to

go shopping (T. 458). He left and later returned and

bought a .22 calibre handgun but received almost no in-

struction on its use. (T. 461). After the purchase, he went

to a ecarry-out which he frequented, and then went home.

(T. 464).

Later, Franklin Police officers received a call con-

cerning a shooting incident on 722 Park Avenue, the home

of the decedent. (T. 162-166). Jewell Savage, a neighbor,

testified that at about 4:00 p.m. on the day of the shooting,

she observed Respondent as he staggered, dazed, through

the alley which separates their houses, with a gun in his

hand, heading toward the home of neighbor, Sandy Ste-

phens. It was she who immediately called the police.

(T. 175).

Officers responding to tle scene found the body of

Respondent’s wife lying in the doorway of the home.

After the shooting, Respondent, still dazed, went to

Charles and Sandy Stephens’ house and made comments

heard by Mr. Stephens, his wife Sandy. and Mrs. Ste-

phens’ sisters, Verla Raney and Phyllis Raney. Mr.

Stephens testified that he was sleeping before Respondent

came to his house, but he awoke and heard Respondent

pleading, “Sandy, go check on her. If she’s hurt bad, I

have a murder rap.” Phyllis Raney testified Respondent

told her he accidentally shot his wife (T. 416), and she

further testified that the police initially left word *‘acci-

dentally” out of her statement. (T. 417). Respondent was

also concerned about his wife and pleaded for someone

to check on her. (T. 351). At no time did he try to hide.

(T. 351, 352). Verla Raney testified that Respondent said

he shot his wife, but also that he may have said “accident-

ally”. She was only 14 at the time. She does remember

Respondent pleading with them to go check on Jewell.

(T. 350, 351).

Sandy Stephens testified Respondent told her to take

the gun but does not recall him asking her to hide it. In

fact Sandy turned the gun over to the police (T.170).

Officer Pressler got no indication that Respondent told

anyone to hide the gun (T.171).

Respondent was arrested at the Stephens’ home and

while still dazed and upset, told Officer Pressler, “I shot

my wife”. (T. 166). He then co-operated with the officer

in being taken to the poiice station.

Respondent was later advised 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), whereupon he was

then removed to the jail (T. 168).

Approximately two hours later, Franklin Police Chief,

George Hamilton, who was acquainted with Respondent,

had him brought forth and interviewed him again, advising

him of his Miranda rights concerning the incident (T. 218).

Respondent ill and confused (T.472) told conflicting ver-

sions of what had transpired (T. 235). However, Respond-

ent does not even remember what he said (T.473). He

even signed a rights card “Charles R.” instead of his full

name (T.373). In fact, during his interview with Chief

Hamilton, Respondent asked at least four times whether

his wife was really dead (T. 379, 380).

Respondent, according to the testimony of Chief Ham-

ilton, said he would tell the truth if he would be promised

permission to go home (T.366). Yet, prior to this, Re-

spondent already gave conflicting stories (‘T. 235) to the

chief showing his dazed and confused state. The discus-

sion ceased when Chief Hamilton received a call from

Respondent’s attorney (T. 223). Subsequent to his inter-

view, with Chief Hamilton, Respondent entered the hos-

pital for 15-16 days because of his ill health (T. 473, 474)

which he suffered from at the time of police interrogation.

Testimony was also adduced that the gun involved had

a heavy pull but could be fired in the manner in which

Respondent stated he had handled the gun in his attempts

to load and unload it (T. 319, 320).

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

packing his clothes into the car, Respondent testified that

he loaded the revolver in his car, parked in the driveway,

with eight or nine bullets just prior to entering the house

(T. 465,491). He accidentally fired a shot through the

floorboard of his car while loading the gun (T.466). He

then took the gun into the house and laid it on a table.

He then testified he was trying to unload the gun when

his wife entered the room and the gun went off accidentally

(T. 468).

The statement of Respondent, given while he was up-

set and very ill, and in violation of his prior request to

have an attorney, contained incriminating (conflicting)

statements, and was used in evidence at trial, over objec-

tions. Upon consideration of the evidence, including the

incriminating statements, the jury found Respondent guilty

of murder.

The re-interrogation of respondent took place after

Chief Hamilton had known that Respondent was arrested

and at the jail for an hour and a half (See T. 217). One-

half hour later, Chief Hamilton began to re-interrogate

Respondent (T. 218). Chief Hamilton even knew that

Respondent had been advised of his rights by other officers

of his police force (T. 221). Chief Hamilton testified he

did not know what respondent told the other officers (T.

221), and was not told by Officer Pressler that Respondent

wanted an attorney, but also did not bother to ask what

was said by Respondent to the officers (See T. 221-222).

The District Court (A-28) and the Sixth Cireuit (A-11)

both agreed that the admission of the evidence was not

harmless error.

fay

ARGUMENT AGAINST GRANTING CERTIORARI

The issue in the instant case was resolved in the case

of United States v. Johnson, 457 U.S. 537 (1982). A con-

viction is not final unless:

“. .. the judgment of conviction was rendered, the

availability of appeal exhausted, and the time for peti-

tion for certiorari had elapsed (or a petition for cer-

tiorari finally denied, all) before our decision in

Mapp v. Ohio.” . . . 102 S.Ct. at 2583 n. 8 (Emphasis

added; alteration of quotation in original). (A-9).

It is clear that under United States v. Johnson, supra,

that Respondent’s case was not “final” when Edwards v.

Arizona, 451 U.S. 477 (1981) was decided. Petitioner now

urges this Supreme Court to disregard its own decision in

the Johnson case. The concurring opinion of Justice Powell

in Solem v. Stumes, — U.S. —, 104 S.Ct. 1338, 52 U.S.L.W.

4307 (February 29, 1984), shows that he has urged this

Supreme Court to adopt the rule regarding retroactivity

that was adopted in United States v. Johnson, supra. See

104 S. Ct. at 1347.

This Supreme Court held in Solem v. Stumes, supra,

that Edwards should not “... be applied in collateral re-

view of final convictions.” 104 S.Ct. at 1345. Solem v.

Stumes, supra, clearly involved a collateral review of a

final 1973 conviction. That is not the situation in Re-

spondent’s case.

Respondent respectfully submits that the rule in Ed-

wards should be applied as per the rule on retroactivity

already set down in Johnson. The case of Respondent in-

volves a sick and dazed man who does not even sign his

full name on the Miranda rights card, and has statements

he made in response to a further interrogation after he

had requested counsel used against him at trial. The Dis-

trict Court found that the statements elicited from Re-

spondent were not the result of a knowing, intelligent, and

voluntary waiver of his constitiutional rights (A-24). The

statements were inconsisted with prior statements of Re-

spondent and were used in the State’s case in chief, not

as an impeachment tool.

This Supreme Court has shown disapprova! in the

past of continuing interrogation of a suspect once the as-

sistance of counsel had been requested. See Michigan v.

Mosley, 423 U.S. 96, 104 n. 10 (1975); Fare v. Michael C.,

442 U.S. 707, 719 (1979); Rhode Island v. Innis, 446 U.S.

291, 298 (1980). The case of Respondent clearly falls in

this area. It had been shown that Respondent’s waiver

was not knowing, intelligent, or voluntary. We have also

seen that the case of United States v. Johnson, supra, has

settled the retroactivity issue and will clearly make Ed-

wards v. Arizona, supra, applicable to this matter.

Since the issue presented in the instant case is already

governed by United States v. Johnson, supra, as applied

to Edwards v. Arizona, supra, and is also governed by the

principles of waiver outlined in Miranda v. Arizona, 384

U.S. 486 (1966) and its progeny, any issue left open by

Solem v. Stumes, supra, is not applicable to the instant

case, and the petition for a writ of certiorari should be

denied.

Respectfully submitted,