Petition — Kiraly v. Clark

In the Supreme Court of the United States

October Term, 1983

WILLIAM KIRALY,

Petitioner,

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

Ricoarp L. AYNEs

Appellate Review Office

School of Law

The University of Akron

Akron, Ohio 44325

(216) 375-7751 *

Counsel of Record for William

Kiraly, Petitioner

——————SSES=SSS>SS==——=S—_SSSSSS=S—=——

THE GATES LEGAL PUBLISHING OO. CLEVELAND, OHIO—TEL. (216) 631-5647

QUESTIONS PRESENTED FOR REVIEW

I. Whether a Federal District Court has the power

to grant a habeas corpus petitioner leave to amend his

petition to add unexhausted claims to a petition in which

it was conceded that only exhausted claims had been ini-

tially raised? See Rose v. Lundy, 455 U.S. 507 (1982).

Il. Whether in order to exhaust state remedies a pe-

titioner may be required to file a third new trial motion

which the state trial judge has already indicated will be

overruled on the merits?

III. Whether a petitioner can be said to have as an

unexhausted state remedy a third new trial motion when

such a motion requires a specific factual showing that he

was unavoidably detained from filing it within 120 days

of trial and neither the Respondent nor the Federal Courts

identify the factual basis which would support such a

claim?

IV. Whether the rationale of Rose v. Lundy, 455 U.S.

507 (1982), can properly be extended to apply to a habeas

corpus petitioner who, unlike the petitioner in Rose, is no

longer in custody and hence cannot refile an amended pe-

tition?

Reasons for Granting the Writ—

IL. A Federal District Court Does Not Have the

Power to Grant a Habeas Corpus Petitioner

Leave to Amend His Petition to Add Unex-

hausted Claims to a Petition in Which It Was

Conceded That Only Exhausted Claims Had

Been Raised 13

I. In Order to Exhaust State Remedies, a Peti-

tioner May Not Be Required to File a Third

New Trial Motion Which the State Trial Judge

IV. The Rationale of Rose v. Lundy, 455 U.S. 507

(1982), Cannot Properly Be Extended to Ap-

ply to a Habeas Corpus Petitioner Who, Un-

like the Petitioner in Rose, Is No Longer in

Custody and Hence Cannot Refile an Amended

Petition 17

Conclusion 20

Appendix:

Opinion of the United States Court of Appeals for

the Sixth Circuit (December 7, 1983

Memorandum Opinion of the United States District

Court (May 3, 1982) A4

Memorandum Opinion of the United States District :

Court (February 22, 1982) 7

Opinion of the Court of Appeals of Cuyahoga County

(October 21, 1977) 7

A32

Journal Entry of the Court of Appeals for Cuyahoga

County, Ohio (December 22, 1977) A57

A59

A60

2

Jurnal Entry of the Court of Common Pleas (Janu-

ary 25, 1977)

Journal Entry of the Court of Common Pleas (Janu-

ary 30, 1977) .. ES LY VS

TABLE OF AUTHORITIES

Cases

Collins v. Perini, 594 F.2d 592 (6th Cir. 197995 16

Hall v. State of Ohio, 541 F. Supp. 295 (S.D. Ohio

1982) 19

Keener v. Ridenour, 594 F.2d 581 (6th Cir. 19799 16

Lewis v. New Mexico, 423 F.2d 1048 (10th Cir. 1970) 14

Rose v. Lund 455 U.S. 507 (1982) ............ 13, 14, 17, 18, 19

Stewart v. Parratt, 682 F.2d 757 (8th Cir. 1982) 19

Tatzel v. Hanlon, 530 F.2d 1205 (5th Cir. 1976) 14

Constitutional Provisions

United States Constitution, Amendment ITV .................... 8, 11

United States Constitution, Amendment .................. 8, 9, 11

United States Constitution, Amendment V1 .......... 8,9, 11, 12

United States Constitution, Amendment XIV .......:2, 8, 9, 10,

11,12

Statutes

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

Ohio Criminal Rule 33 (3) 3, 15, 16

Ohio Revised Code, Section 2903.01 4

Ohio Revised Code, Section 2909.02 2,4

Ohio Revised Code, Section 923.ᷣꝶ1: 2,4

Ohio Revised Code, Section 2923.02 4

Ohio Rules of Criminal Procedure, Rule 29 8

No.

In the Supreme Court of the United States

October Term, 1983

CLARENCE CLARK, Chairman,

Respondent.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Sixth Circuit is unpublished and is reproduced in the

Appendix (hereinafter App.“) at Al-A3. The opiz-

ion of the Federal District Court denying the motion to

alter or amend is unreported and is reproduced at App.

A4-A6. The opinion of the Federal District Court dis-

missing the Petition for Writ of Habeas Corpus is un-

reported and is reproduced at App. A7-A31. The opin-

ion of the Ohio Court of Appeals affirming the judgment

of conviction is reported at 56 Ohio App. 2d 37, 381 N.E.

2d 649 (1977) and is reported at App. A32-A56. The

decision of the Ohio Court of Appeals denying reconsidera-

tion is unreported and reproduced at App. A57-A58. The

two journal entries of the State trial court denying Mr.

Kiraly’s second Motion for a New Trial are unreported

and reproduced at App. A59-A60.

JURISDICTION

The Sixth Circuit’s Decision affirming the Judgment

of the District Court below was issued on December 7,

1983. The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

The Due Process Clause of the Fourteenth Amendment

to the United States Constitution provides:

Nor shall any State deprive any person of life,

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

Ohio Revised Code § 2909.02, Aggravated Arson, pro-

vides:

(A) No person, by means of fire or explosion,

shall knowingly:

(2) Cause physical harm to any occupied struc-

ture;

Ohio Revised Code § 2923.01, Conspiracy, provides:

(A) No person, with purpose to commit or to

promote or facilitate the commission of aggravated

murder or murder, . . aggravated arson or arson, .. .

shall do either of the following:

(1) With another person or persons, plan or aid

in planning the commission of any such offense;

N

1 e

(2) Agree with another person or persons that

one or more of them will engage in conduct which fa-

cilitates the commission of any such offense.

Ohio Criminal Rule 33(B) provides:

Motion for new trial; form, time. Application for

a new trial shall be made by motion which, except

for the cause of newly discovered evidence, shall be

filed within fourteen days after the verdict was ren-

dered, or the decision of the court where a trial by

jury has been waived, unless it is made to appear by

clear and convincing proof that the defendant was un-

avoidably prevented from filing his motion for a new

trial, in which case the motion shall be filed within

seven days from the order of the court finding that

the defendant was unavoidably prevented from filing

such motion within the time provided herein.

Motions for new trial on account of newly dis-

covered evidence shall be filed within one hundred

twenty days after the day upon which the verdict was

rendered, or the decision of the court where trial by

jury has been waived. If it is made to appear by clear

and convincing proof that the defendant was un-

avoidably prevented from the discovery of the evidence

upon which he must rely, such motion shall be filed

within seven days from an order of the court finding

that he was unavoidably prevented from discovering

the evidence within the one hundred twenty day

period.

STATEMENT OF THE CASE

In 1975 a three-count indictment was returned against

William Kiraly and Joseph Gallo. Count one was for at-

tempted aggravated murder in violation of R.C. §§ 2903.01

and 2923.02; count two was for aggravated arson, R.C.

§ 2909.02; and count three was for conspiracy to commit

aggravated murder, R.C. § 2923.01. All three counts in-

volved the destruction of a building owned by Daniel

Greene. Prior to trial count one was dismissed.

At trial Mr. Kiraly maintained his innocence by en-

tering a plea of not guilty and exercising his right to trial

by jury. He did not testify in his own behalf because the

trial judge refused to grant a motion in limine which would

have prohibited the prosecutor from using a 36-year-old

robbery conviction to impeach him. Mr. Kiraly both con-

tested the state’s proof and presented an alibi defense.

In spite of the seriousness of these charges, the State’s

evidence was slight. The State demonstrated only that

Mr. Kiraly was being surveilled by members of the F.B.I.

organized crime unit; that he was seen together with

Joseph Gallo on several occasions; that he was seen in

the area of Mr. Greene’s home (which was a three-minute

drive from Mr. Kiraly’s brother’s house (T. 230; 1398));

that particles of certain explosives, which were never

linked with Mr. Kiraly, were found in the trunk of Mr.

Gallo’s car; and that one Tim Thomas purported to iden-

tify Mr. Kiraly as a man he saw at the scene of the ex-”

plosion shortly before it occurred.

Tim Thomas was the State’s “key” witness. Yet the

reliability of his identification of Mr. Kiraly was brought

into serious question. Mr. Kiraly, a white male, has made

a proffer that at an evidentiary hearing he could establish

that Mr. Thomas initially told the police it was TWO

BLACK MALES that he saw at the scene of the explosion.

Further, because of Mr. Thomas’ unfamiliarity with

Mr. Kiraly and the great distance at which he claimed

to have made the night identification, his ability to iden-

tify Mr. Kiraly was brought into serious question. His

veracity was also challenged by his own statements to

neighbors, the police, and a newspaper reporter that eve-

ning which contradicted his testimony at trial. Beyond

this, the record of the new trial motion demonstrates the

prosecutor suppressed evidence that Mr. Thomas’ testimony

might have been influenced by promises or expectations of

leniency on outstanding warrants for theft and unlawful

flight and that Mr. Thomas had a prior juvenile record.

Though at trial he denied knowing (T. 858, 873-874)

and working for Mr. Greene (T. 858), in the new trial pro-

ceeding his uncle testified that Mr. Thomas claimed to

have known Mr. Greene and to have worked for him (T.

1620-22; 1627-28; 1634; 1637). The latter testimony was

corroborated by testimony in the new trial proceedings

that Mr. Greene made to George Morgan.

The evidence before the jury set forth a number of

other possible explanations for the explosion rather than

the theory advanced by the State, including the possibility

that because of his violent lifestyle someone else attempted

to kill Mr. Greene or that Greene himself accidentally set

off a bomb.

Mr. Kiraly not only disputed the State’s evidence, but

presented evidence indicating a status of health that was

inconsistent with the professional “hit-man” that the State

tried to claim he was. Mr. Kiraly had last worked a full

ten years before this incident—in 1965 before having heart

surgery (T. 1400). Since that time he was said to be

“pretty sick all the time” (T. 1400) and on:

4 1

a 1

4 8 1

ro 2 5

D . ⅛ ' ee eae o_O

“. . . 100% disability, I know that since I think, 1969

or 1970, he has had open heart surgery, several op-

erations on his back, and a couple weeks ago, he had

to go in for a bone cancer or something, something in

reference to a bone condition” (T. 1399).

See also medical records, Exhibits C-1 through C-11.

Further, as part of his defense at trial, Mr. Kiraly pre-

sented the testimony of three witnesses establishing that

he was at 5526 Richmond Road in Bedford Heights, Ohio

a suburb on Cleveland’s East Side, at the time of the ex-

plosion. The witnesses were in a better position to recall

this specific day because May 11 was Mother’s Day.

The jury returned guilty verdicts upon the two counts

submitted to it. After Mr. Kiraly’s trial, his co-indictee,

upon an arrest warrant for unlawful flight. With this

1. There was one aspect of the States case which pur-

ported to link each of the co-indictees to the crime which was

not present in the other’s case. e

i

5

7

added defense testimony before the jury, Mr. Gallo was

acquitted.

It was this new testimony and later information sug-

gesting that the State’s witness claimed to have been an

employee of Daniel Greene that provided the basis for Mr.

Kiraly’s first new trial motion. After an evidentiary hear-

ing, the State Court denied the motion. Subsequently, Mr.

Kiraly’s counsel discovered additional evidence which sug-

gested that perjury may have been committed by State

witnesses in the trial and made a second new trial motion.

This motion was denied without an evidentiary hearing.

The Ohio Court of Appeals overruled Mr. Kiraly’s

Nine Assignments of Error.* Mr. Kiraly next sought re-

8 * Eine Ces eae 00 0. mation Of Sey, one See

Footnote continued—

of law and to the

to

Appellant's

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as a matter

6. The Court erred

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right and refused to grant his request that the record be

On April 10, 1978, Mr. Kiraly, acting pro se, filed a

Petition for Writ of Habeas Corpus raising five grounds

for relief.‘ Subsequently, Petitioner obtained his present

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10

counsel, who, with leave of the Court, amended his Peti-

tion to present 13 grounds for relief.“ The record was

5. 1. The State violated Petitioner’s Fourteenth Amendment

right to due process by f to disclose the agreement

or understanding that it had given leniency to two State’s

in

the presentation of perjury to the jury including the fol-

a. That a dynamite box lid was initially in the alleged

bombing car when, in fact, it was planted there

afterward.

b. That Daniel Greene did not know Tim Thomas, when,

in fact, Thomas worked for Greene.

4. The State violated Petitioner’s Fourteenth Amendment

e

c. Another important witness, Daniel Greene, was an

informant.

11

supplemented by depositing portions of the transcript from

the Gallo trial.

On February 22, 1982, the District Court issued its

order dismissing the Petition for Writ of Habeas Corpus.

Petitioner filed a Motion to Alter or Amend the Judgment

which was denied on May 3, 1982.

The District Court denied Mr. Kiraly’s Motion for a

certificate of probable cause, but that motion was granted

by the Court of Appeals in November of 1982. Nine issues

Footnote continued—

6.

10.

11.

—

The State violated Petitioner's rights to due process and

an impartial jury because the prosecutor and several law

enforcement agents, who were witnesses, made improper

inflammatory comments.

E

The State violated Petitioner’s rights to due process and

effective assistance of counsel by excluding Petitioner’s

attorney from being present at a line-up.

cause the prosecution failed to the existence of

each and every element of the charged beyond a

reasonable doubt.

The State viola s Fourteenth Amendment

rights when it

State knew, or should have known, was physically im-

possible.

The State violated Petitioner’s Fourteenth Amendment due

process rights by defining the State’s burden of proof in

such a manner as to allow conviction without a finding of

guilt beyond a reasonable doubt. ;

The State violated Petitioner’s Sixth and Fourteenth

Amendment confrontation and cross-examination rights

te 6 SS eee eee oe

Set 1 ——— —

The State trial court denied Petitioner his under

89 casas tele ae 6 ene

tien more than 35 years old.

The State Fourth and

— ghey 3

to a defective search warrant.

1

„

12

were presented for review in that Court.“ Prior to oral

I.

II.

The District Court erred in holding that Petitioner had to

exhaust State remedies upon three of his claims.

hold ‘

The District Court erred in failing to find that Petitioner

was denied Due Process of Law as guaranteed by the

— Amendment by the State’s failure to disclose

The District Court erred in failing to find that the State

violated Petitioner’s rights to fundamental fairness, due

IIIA LI.

g

i

i

fe :

al

11

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11

i

13

argument, the Circuit Court erroneously dismissed the case

as moot. Upon a motion for reconsideration, the judgment

was vacated and the case reinstated.

On December 7, 1983, the panel below issued a three-

page opinion affirming the dismissal of Mr. Kiraly’s habeas

corpus petition upon the grounds that it was a “mixed”

petition containing exhausted and unexhausted claims.

Authority cited for this proposition was Rose v. Lundy, 455

U.S. 507 (1982).

REASONS FOR GRANTING THE WRIT

I. A FEDERAL DISTRICT COURT DOES NOT

HAVE THE POWER TO GRANT A HABEAS

CORPUS PETITIONER LEAVE TO AMEND HIS

PETITION TO ADD UNEXHAUSTED CLAIMS

TO A PETITION IN WHICH IT WAS CONCEDED

THAT ONLY EXHAUSTED CLAIMS HAD BEEN

RAISED.

Mr. Kiraly initially filed his habeas corpus petition

with five separate claims. See fn. 3, supra. The District

Court and Respondent’s counsel indicated that all avail-

14

rather than dismissing the entire Petition because it con-

tained mixed claims, the Circuit Court should have over-

ruled the District Court’s order adding the unexhausted

claims and reached the merits of the exhausted claims.

To be sure, this issue was not raised in the Circuit

Court briefs by the party. Nevertheless, if the District is

without power to entertain the mixed Petition, then the

Circuit Court had no choice but to consider the issue and

overrule the District Court judge’s decision to improperly

add the unexhausted claim (s).

No principle is more well established than that the

Federal Courts have an obligation to insure that juris-

diction actually exists and that jurisdiction cannot be

stipulated to by the parties. Accordingly, Mr. Kiraly

would ask that this Court consider whether the appli-

cability of Rose v. Lundy should prohibit the amending of

habeas corpus petition to add unexhausted claims.

II. IN ORDER TO EXHAUST STATE REMEDIES, A

PETITIONER MAY NOT BE REQUIRED TO

FILE A THIRD NEW TRIAL MOTION WHICH

THE STATE TRIAL JUDGE HAS ALREADY IN-

DICATED WILL BE OVERRULED ON THE

MERITS.

It was thought to be well established that the require-

ment to exhaust state remedies does not require a “futile”

act or an “idle or useless effort.” E.g., Tatzel v. Hanlon,

530 F.2d 1205, 1206 (5th Cir. 1976); Lewis v. New Mezxico,

423 F.2d 1048, 1049 (10th Cir. 1970). In the case at bar,

Mr. Kiraly has already been denied two previously filed

new trial motions.

The trial court’s second order made it unmistakably

clear that the trial judge, to whom any new trial motion

must be made, found that the Petitioner had failed to make

the request showing that he came within the exception to

15

the 120-day requirement of Ohio Criminal Rule 33(B).

The Court’s first order denying the second new trial mo-

tion read:

“Application for permission to file Affidavits in

Support of Motion for New Trial, granted. Motion

for New Trial, overruled.” (Emphasis added) (App.

A59)

The “Amended Journal Entry to Clarify the Entry of

January 15, 1977” reads:

“Upon showing of clear and convincing proof that

the defendant was unavoidably prevented from the

discovery of new evidence, the defendant’s Motion for

permission to file a Motion for a New Trial, (filed

October 23, 1977), is granted.

the affidavits do not present evidence which warrants

the granting of a New Trial.” (App. A60) |

Nevertheless, the Circuit below held that Mr. Kiraly

should file an additional new trial motion in order to ex-

175

ied #

1

i

f

J

f

3

f

i

16

III. A PETITIONER CANNOT BE SAID TO HAVE

AS AN UNEXHAUSTED STATE REMEDY A

THIRD NEW TRIAL MOTION WHEN SUCH A

MOTION REQUIRES A SPECIFIC FACTUAL

SHOWING THAT HE WAS UNAVOIDABLY DE-

TAINED FROM FILING IT WITHIN 120 DAYS

OF TRIAL WHEN NEITHER THE STATE NOR

THE FEDERAL HABEAS COURTS IDENTIFY

THE FACTUAL BASIS WHICH WOULD SUP-

PORT SUCH A CLAIM.

The Circuit did not indicate that Mr. Kiraly fell with-

in the exception of Ohio Criminal Rule 33(B) and there-

fore was entitled to pursue relief through a new trial mo-

tion. Rather, all that Court indicated was that in theory

a new trial motion could be made if a proper factual pred-

icate was established: that it was proven by clear and

convincing evidence that Mr. Kiraly was unavoidably de-

tained from discovering the evidence upon which the new

trial motion was based. Neither the Federal Courts nor

the Respondent have at any time indicated what the factual

basis of such claim could possibly be.

An analogy can be drawn to the use of a delayed ap-

peal in the State of Ohio. It is certainly true that as a

matter of theory a criminal defendant has the right to pur-

sue a delayed appeal and must do so in order to exhaust

state remedies. However, the factual predicate for exer-

cising that right is that no direct appeal has ever been

taken. See generally Keener v. Ridenour, 594 F.2d 581

(6th Cir. 1979), and Collins v. Perini, 594 F.2d 592 (6th

Cir. 1979).

But, the courts are not permitted to hold since in

theory there may be a remedy of delayed appeal, one must

seek it first in order to prove that that remedy does not

17

exist. To the contrary, in order for a claim to be dismissed

on the grounds that there is available state remedy, the

Court must find the existence of the factual predicate:

that no direct appeal has been taken.

Mr. Kiraly submits that the same process applies here.

In order to properly find that he comes within the excep-

tion and can file a new trial motion, a Federal Court must

find the existence of the factual predicate: that Mr.

Kiraly was unavoidably detained in presenting this motion

earlier.

The Court should grant leave in this case in order to

consider whether the Federal Courts must articulate the

factual basis for finding an unexhausted state remedy

exists.

IV. THE RATIONALE OF ROSE V. LUNDY, 455 U.S.

507 (1982), SHOULD NOT BE EXTENDED TO A.-

PLY TO A HABEAS CORPUS PETITIONER WHO,

UNLIKE THE PETITIONER IN ROSE, IS NO

LONGER IN CUSTODY AND HENCE CANNOT

REFILE AN AMENDED PETITION.

This case presents a novel application of Rose v. Lundy,

supra. Rose v. Lundy does not, by its own terms, apply to

such cases as the one where the Petitioner’s intervening

release would prohibit him from refiling his petition

because he can no longer meet the “in custody” require-

ment. This being the case, this Court is called upon to

reach the question of whether Rose v. Lundy can be ex-

tended to apply a situation such as the one at bar or

whether it should be limited to the facts and rationale as

articulated in Rose.

It is not disputed that under the facts of Rose the

District Court cannot entertain a petition which contains

both exhausted and unexhausted claims. This Court

18

stated that dismissing “mixed petitions” would not impair

the prisoner’s interests in obtaining federal relief:

“since he can always amend the petition to delete the

unexhausted claims, rather than returning to state

court to exhaust all of his claims.” Rose v. Lundy,

455 U.S. 509, 520 (1982) (emphasis added).

The Court seems to have contemplated that petitioners

would be able to refile their petitions for habeas corpus

without the unexhausted claims.

This Petitioner would not be able to refile his petition

since he was released on parole on November 1, 1979, and

completed his parole obligations on November 1, 1980.

Since § 2254(b) requires a person to be in custody before

he may file a habeas petition, dismissal of the petition effec-

tively precludes him from federal relief.

That the harsh results that would incur to Mr. Kiraly

by a mechanical application of the Rose case was not con-

templated is suggested from the closing paragraph of the

majority opinion:

. . . because a total exhaustion rule promotes comity

and does not unreasonably impair the prisoner’s right

to relief, we hold that a district court must dismiss

habeas petitions containing both unexhausted and ex-

hausted claims.” 455 U.S. 509, 522 (1982) (emphasis

added).

A prisoner’s rights are not unreasonably impaired when his

federal relief is merely delayed in favor of first allowing

a state determination. Total abrogation of federal relief

is an unreasonable impairment not to be counterbalanced

by the interest of comity between the federal and state

courts. Rose should therefore be limited to.the cases

where the petitioner has an opportunity to refile in federal

19

Given the different factual context, a different pro-

cedure should be fashioned. There are at least three

alternatives. The least attractive is to allow Mr. Kiraly

time in which to amend his petition—if he so desires—to

delete the unexhausted claims. This procedure appears to

have been adopted in post-Rose cases even where there

appears to have been no bar to filing a new petition. E. g.,

Stewart v. Parratt, 682 F.2d 757, 758 (8th Cir. 1982); Hall

v. State of Ohio, 541 F. Supp. 295, 297 (S.D. Ohio 1982).

A second alternative would be to direct the District

Court to retain jurisdiction until the State courts issued a

ruling upon the issue of whether any state remedy is cur-

rently available to this Petitioner. But the most proper

alternative would be to issue an alternative Writ of Habeas

Corpus requiring the State to grant Mr. Kiraly an evi-

dentiary hearing within 90 days after the filing of simul-

taneous motions for a new trial and post-conviction relief.

If, as the Circuit Court hypothesizes, such a hearing is

available under state law, then such an alternative writ

would merely be redundant and would have no effect upon

the actions of the state courts. On the other hand, if the

District Court is mistaken, then use of the alternative writ

would protect Mr. Kiraly’s access to a forum in which to

litigate his constitutional claims.

While Mr. Kiraly fully maintains that the better posi-

tion is to limit Rose to its own basis, he nevertheless fully

acknowledges that this Court has the power and the right

to reach an opposite conclusion as long as it can support

that conclusion by a rational articulation of reasons justify-

ing the extension of Rose. Regretfully, the panel decision

below failed to acknowledge this choice and acted as if

Rose applied by its own force to the case at bar. Given

the impact of this issue on habeas corpus, it is deserving of

treatment by the Court.

CONCLUSION

All four issues presented by Petitioner Kiraly per-

tain to the doctrine of exhaustion of state remedies. Their

resolution will have national impact in determining the

consideration of such claims by the Federal District Courts.

Consequently, Petitioner Kiraly suggests that these issues

are worthy of the attention of the Court and requests that

certiorari be granted.

Respectfully submitted,

Ricuarp L. Aris

Appellate Review Office

School of Law

The University of Akron

Akron, Ohio 44325

(216) 375-7751

Counsel of Record for William

Kiraly, Petitioner

Al

APPENDIX

OPINION OF THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

(Filed December 7, 1983)

No. 82-3723

UNITED STATES COURT OF APPEALS

For THE Stern Cmcurr

WILLIAM KIRALY,

Petitioner-Appellant,

v.

CLARENCE CLARK, Chairman,

Respondent-Appellee.

BEFORE: Krrrn, Kennepy and Jonss, Circuit Judges.

PER CURIAM This is an appeal from a district court

decision which dismissed petitioner’s writ of habeas corpus

because it contained claims which had not been exhausted

in the state court.

Petitioner was initially indicted by a Cuyahoga County

Grand Jury for attempted aggravated murder, aggravated

arson and conspiracy to commit aggravated murder. Fol-

lowing a jury trial, petitioner was found guilty of the

latter two crimes and sentenced to five to twenty-five years

imprisonment on each count, sentences to run concurrently.

Petitioner appealed his conviction to the Ohio Court

of Appeals where the trial court's judgment was affirmed.

A2

Appeal was subsequently sought in the Ohio Supreme

Court, but that court declined review.

Thereafter, a petition for writ of habeas corpus was

filed in United States District Court for the Northern Dis-

trict of Ohio. Petitioner amended his petition to contain

several claims that had not been raised in the Ohio state

courts. The district court issued an opinion dismissing

the petition for failure to exhaust state judicial remedies.

Petitioner later moved to alter or amend the district court

judgment. The district court denied the motion to alter

or amend and affirmed its earlier judgment [2] which dis-

missed petitioner’s writ. F

Petitioner appealed the district court judgment, after

which he was released from prison on parole. Petitioner

was granted a final release from parole while this appeal

was still pending. For the reasons set forth below, we

affirm the decision of the district court.

In dismissing the petitioner’s habeas petition, the dis-

trict court held that the review must be denied pursuant

to Rose v. Lundy, 455 U.S. 507 (1982), where the Supreme

Court held that a “mixed” petition containing exhausted

and unexhausted claims must be dismissed.

Petitioner asserts that the district court erred because

he has exhausted all available remedies in the Ohio courts.

According to petitioner, further pursuits of his claims in

the Ohio courts would be futile because the Ohio State

Court of Appeals failed to grant his original motion for new

trial. Petitioner further contends that his failure to present

newly discovered evidence within the 120 days after ver-

dict as required by Ohio Criminal Rule 33(B) precludes

further review by the Ohio courts. That rule provides in

pertinent part:

A3

Motions for new trial on account of newly discovered

evidence shall be filed within one hundred twenty

days after the day upon which the verdict was ren-

dered, or the decision of the court where trial by jury

has been waived. If it is made to appear by clear and

convincing proof that the defendant was unavoidably

prevented from the discovery of the evidence upon

which he must rely, such motion shall be filed within

seven days from an order of the court finding that he

was unavoidably prevented from discovering the evi-

dence within the one hundred twenty day period.

(Emphasis added).

The language of Ohio Criminal Rule 33(B) illustrates

the error of petitioner contention. Petitioner may still seek

a new trial after the one hundred twenty day limitation of

Rule 33(B) if he can show by clear and convincing evi-

dence that he was unavoidably prevented from the dis-

covery of that evidence. Petitioner, however, chose not to

pursue this available remedy, and instead sought habeas

relief in the federal district court. However, petitioner

had not exhausted his state remedies as required by [3]

28 U.S.C. §2254. Thus, the district court was correct in dis-

missing petitioner’s habeas petition pursuant to Rose v.

Lundy, supra.

Accordingly, we affirm the judgment of the Honorable

John M. Manos of the United States District Court for the

Northern District Court of Ohio dismissing the petition

for writ of habeas corpus.

A4

MEMORANDUM OPINION OF THE UNITED

STATES DISTRICT COURT

(Filed May 3, 1982)

Case No. C78-398

IN THE UNITED STATES DISTRICT COURT

For THe Nortuean District or Omo

MEMORANDUM OF OPINION

On April 4, 1978, the petitioner, William Kiraly, filed

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

§ 2254. Attached to his petition was a motion to proceed

in forma pauperis. 28 U.S.C. § 1915. On April 10, 1978,

the court granted Kiraly leave to proceed in forma pauperis

and ordered the Attorney General of the State of Ohio to

certify the true cause of detention in accordance with

28 U.S.C. § 2243. On May 2, 1978, the Attorney General

filed a return of writ. Between May, 1978, and June,

1980, Kiraly filed additional briefs and an amended petition

with the assistance of counsel. The State of Ohio also

filed supplemental returns of writ. On February 22, 1982,

this court denied Kiraly’s application for a writ of habeas

corpus and dismissed the petition. On March 2, 1982,

2 Tr.

7 3 n

1 1 ~~ A ’ 1 8 442 g pti” \ 3 8 r &

STEP Se RE

A5

Kiraly filed a motion to alter or amend the judgment pur-

suant to Federal Rule of Civil Procedure 59(e). For the

reasons discussed below, Kiraly’s Rule 59(e) motion is

denied.

When Kiraly originally filed his habeas corpus petition,

he was in the custody of Ted Engle, Superintendent of the

Chillicothe Correctional Institution. On October 10, 1979,

the Ohio Parole Authority granted him a parole effective

November 1, 1979. Kiraly has completed the terms and

conditions of the parole and now enjoys a full release.

Kiraly’s petition alleged thirteen grounds for relief.

After a careful examination of the record, this court held

that Kiraly had not exhausted his state remedies on three

of those claims. The court dismissed the other claims for

relief on their merits.

[2] In his Rule 59(e) motion Kiraly requests the court

to reconsider its rulings on several of the exhausted issues.

As to the unexhausted claims, Kiraly does not specifically

request this court to reconsider its ruling. However, Kiraly

does submit that because it is “unclear whether he does

in actuality, have a realistic hope of presenting his claims

to the State Courts” and because he is no longer in cus-

tody, he may not be able to seek federal habeas review

if the state courts do not grant his motions.“ Thus, he asks

this court to:

. . . issue an alternative Writ of Habeas Corpus re-

quiring the State to grant [him] an evidentiary hear-

ing—either on post-conviction or through the vehicle

Kiraly’s Motion to Alter or Amend the Judgment, p. 10.

“The federal habeas corpus statute that the ap-

must custody’ when

1556, 1560 (1

968).

‘in the for habeas

is filed.” Carafas v. LaVallee, 391 234, 238, 88 8. Cr.

As

of a new trial motion—within 90 days after the filing

of a Motion for New Trial and a simultaneous Petition

for Post-Conviction Relief in the Court of Common

Pleas of Cuyahoga County.

OR

That this court vacate its prior order, direct [him]

to exhaust his State remedies, and in the meantime

retain jurisdiction over the case but stay all proceed-

ings until any existing state remedies are exhausted.

In a very recent decision, Rose v. Lundy, ,. US.

. 102 S. Ct. 1198 (1982), the Supreme Court held: be-

cause a total exhaustion rule promotes comity and does not

unreasonably impair the prisoner’s right to relief, we hold

that a district court must dismiss habeas petitions con-

taining both unexhausted and exhausted claims.” 102 S.

Ct. at 1205. The Supreme Court was unequivocal in its

adoption of a total exhaustion rule. When confronted

with a habeas petition in which the petitioner presents

both exhausted and unexhausted claims, the district court

must dismiss the entire petition. The district court is not

to decide the merits of exhausted claims or to retain un-

exhausted claims until the state courts have decided those

claims.

Accordingly, the court denies Kiraly’s motion to alter

or amend the judgment.

IT IS SO ORDERED.

„% Jom M. Manos

United States District Judge

r

A/

MEMORANDUM OPINION OF THE UNITED

STATES DISTRICT COURT

(Filed February 22, 1982)

Case No. C78-398

IN THE UNITED STATES DISTRICT COURT

FoR THE NorTHERN Disrrict or OHIO

EASTERN Drvision

MEMORANDUM OF OPINION

On April 4, 1978 the petitioner, William Kiraly, filed

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

2254. Attached to his petition was a motion to proceed

in forma pauperis. 28 U.S.C. § 1915. On April 10, 1978

the court granted Kiraly leave to proceed in forma pauperis

and ordered the Attorney General of the State of Ohio to

certify the true cause of detention in accordance with 28

U.S.C. § 2243. On May 2, 1978 the Attorney General

filed a return of writ. On May 4, 1978 Kiraly filed a brief

in support of his petition. On May 15, 1978 the Attorney

1. At that time D

Superintendent of the Chilticothe Correctionel tnetibation,

October 10, 1979 the Ohio Parole Authority granted him a parole

effective November 1, 1979.

A8

General filed a supplemental return of writ. On May 23

Kiraly filed a supplemental brief. On August 2, 1978

Richard Aynes filed notice that he would appear as counsel

for Kiraly in all proceedings for this case. On January

29, 1979 Barton Craig also filed notice that would appear

as co-counsel for Kiraly. On March 30, 1979 Kiraly moved

for leave to amend his petition; this court granted that

motion on April 19, 1979.

In his amended petition Kiraly alleges thirteen grounds

for relief:

1. The State violated his Fourteenth Amendment right

to due process by failing to disclose the agreement or un-

derstanding that it had given leniency to two State’s

witnesses in return for their testimony against Kiraly at

trial.

2. The State violated Kiraly’s Fourteenth Amendment

rights under the due process and privileges and immunities

clauses by affirmatively misrepresenting that its key wit-

ness, Tim Thomas, was unavailable, that Thomas had turned

himself over to the F. B. I., that he was in protective custody

and that he had no record, when in fact Thomas had robbed

a gas station, fled the state, was subsequently arrested

for this theft charge and also had a prior juvenile record.

[2] 3. The State violated Kiraly’s Fourteenth Amend-

ment rights when it participated, by negligence or design,

in the presentation of perjury to the jury including the

following:

a. That a dynamite box lid was initially in the alleged

bombing car when, in fact, it was planted there afterward.

d. That Daniel Greene did not know Tim Thomas,

when, in fact, Thomas worked for Greene.

* —

tf N ‘kA

8

A

4. The State violated Kiraly’s Fourteenth Amendment

rights when it knowingly suppressed evidence material to

guilt or innocence:

a. The key witness identified individuals other than

Kiraly shortly after the incident in question.

b. That witnesses gave the police the license numbers

or description of cars as being on the bombing scene, other

than that of the car it claimed Kiraly was in the night of

the bombing.

c. Another important witness, Daniel Greene, was a

F.B.I. or State informant.

d. Daniel Greene selected the prosecutor and certain

witnesses in Kiraly’s trial.

5. The State violated Kiraly’s Fourteenth Amendment

right to due process when it denied his motion for new trial

based upon testimony establishing the bias and interest

on the part of the State’s key witness, Tim Thomas, and

which was suppressed at trial.

6. The State violated Kiraly’s rights to due process

and an impartial jury because the prosecutor and several

law enforcement agents, who were witnesses, made im-

proper and inflammatory comments.

7. The State violated Kiraly’s rights to due process

and effective assistance of counsel by excluding Kiraly’s

attorney from being present at.a line-up.

8. The State violated Kiraly’s right to due process

because the prosecution failed to prove the existence of

each and every element of the offense charged beyond a

reasonable doubt.

9. The state violated Kiraly’s Fourteenth Amendment

rights when it presented eyewitness testimony which the

Al0

State knew, or should have known, was physically im-

possible.

{3] 10. The State violated Kiraly’s Fourteenth Amend-

ment due process rights by defining the State’s burden

of proof in such a manner as to allow conviction without

a finding of guilt beyond a reasonable doubt.

11. The State violated Kiraly’s Sixth and Fourteenth

Amendments confrontation and cross-examination rights

when it denied his counsel the opportunity to inspect

written police reports containing summaries of witness

Daniel Greene’s prior Statement.

12. The State trial court denied Kiraly his rights

under the Fifth and Fourteenth Amendments when it held

that the prosecutor could impeach Kiraly with a conviction

more than 25 years old.

13. The State violated Kiraly’s Fourth and Fourteenth

Amendment rights by introducing evidence unlawfully

seized pursuant to a defective search warrant.

On December 10, 1979 the Attorney General filed a

supplemental return of writ. On February 1, 1980 Kiraly

filed a brief in opposition to the State’s most recent return

of writ. On June 30, 1980 Kiraly moved to amend his

petition by substituting Clarence W. Clark, Chairman of

the Ohio Adult Parole Authority for Ted Engle, Super-

intendent of the Chillicothe Correctional Institute. The

court grants this motion to amend.

For the reasons discussed below, Kiraly’s petition for

a writ of habeas corpus is denied.

I.

At approximately 3:30 a.m. on the morning of May 12,

1975, an explosion destroyed Daniel Greene’s house. The

explosion was caused by the detonation of four or five

All

pounds of tetrytol, a substance which is not available to

the general public through lawful means. Tim Thomas,

a resident of the neighborhood, who could not sleep that

night was strolling the streets. Shortly before the ex-

plosion he observed a green Oldsmobile and then saw a

man walk behind Greene’s house. Greene survived the

blast.

14] Later the same day the police secured a warrant to

search Kiraly’s 1969 black Cadillac and a 1974 green Olds-

mobile owned by Joseph Gallo. The affidavit, which sup-

ported the request for the search warrant, averred that

both Kiraly and Gallo had extensive police records, that

both men had dealings with recent victims of gangland

slayings and that a note removed from the automobile of

one of the victims indicated that Daniel Greene was under

surveillance. The affidavit further averred that Gallo

was leasing a green Oldsmobile with license plate number

EL 805 and that this automobile or a car bearing this license

number had been seen by informants in Daniel Greene’s

neighborhood: On May 7, 1975 Greene saw a green Buick

with license plate number EL 805 drive near his house. On

May 9, 1975 another informant saw a black Cadillac with

license number EL 805 driving around the vicinity of

Green’s house. On May 11, 1975 a second informant ob-

served a black Cadillac with license number EL 805 stop

near a tavern, just several doors from Greene’s house.

Finally the affidavit averred that the FBI had both Kiraly

and Gallo under surveillance and that the FBI had observed

them together in both the Cadillac and the Oldsmobile.

The search of Gallo’s Oldsmobile discovered part of box

for blasting caps and a yellow powder, which laboratory

tests later revealed to be tetrytol. Arrest warrants for

Kiraly and Gallo were then issued.

On June 10, 1975 when Kiraly learned that an arrest

‘warrant had been issued for him, he secured a lawyer, Mr.

Al2

Ralph Sperli. Kiraly intended to meet his attorney and

then with his attorney go to the police station where he

would surrender himself. But the police arrested Kiraly

before he was able to meet his attorney. Later that day

Kiraly was released on bond.

On June 11, 1975 the police arranged for a line-up to

determine if Thomas could identify Kiraly as the man he

saw behind Greene’s house the morning of the explosion.

Before Thomas was taken to view the line-up, the police

showed him approximately twenty-five photographs.

Thomas recognized Kiraly, but did not say anything be-

cause he wanted to see the line-up. Sperli brought Kiraly

to the police station for the line-up. The police asked

Sperli to step into another room while they arranged the

line-up and brought up the witness. [5] Five other men,

the same size and hair color as Kiraly, were used to com-

pose the line-up. When Thomas was brought in, he was

told: He may be there, he may not. Give us a yes or no.

If you do not see the man, say no.” Thomas identified

Kiraly as the man he saw that night. Thomas said he

was so sure of the identification that his hands were shak-

ing. However, Sperli was never called into the room and

thus did not see the line-up. The prosecutor insists that

this was due solely to confusion and inadvertence.

On June 12, 1975 the grand jury of Cuyahoga County,

Ohio indicted Kiraly and Gallo on one count of attempted

aggravated murder in violation of OHIO REV. CODE ANN.

5 2903.01 and 2923.02 (Page 1975); one count of aggra-

2. OHIO REV. CODE ANN. § 2903.01 (Page 1975), provides:

A) No person shall purposely, and with prior calcula-

Arn

B) No person purposely cause the death of

ge igh ee Fo — 0 — ex wills

(Continued on following page)

Al3

vated [6] arson in violation of OHIO REV. CODE ANN

§ 2909.02 (Page 1975) ;* and one count of conspiracy to com-

Footnote continued

fleeing immediately after committing or attempting to commit

kidnapping, rape, aggravated arson or arson, aggravated

robbery or robbery, aggravated burglary or burglary, or

escape.

(C) Whoever violates this section is guilty of aggravated

murder, and shall be punished as provided in section 2929.02

of the Revised Code.

OHIO REV. CODE ANN. § 2923.02 provides:

(A) No person, purposely or knowingly ‘when |

purpose or knowledge is sufficient culpability ig the com- |

mission of an offense, shall engage in conduct which, if

successful, would constitute or result in the offense.

(D) It is an affirmative defense to a charge under this

section that the actor abandoned his effort to commit the

offense or otherwise prevented its commission, under cir-

cumstances manifesting a complete and voluntary renuncia-

tion of his criminal purpose.

(E) .

tempt to commit an offense. An attempt to commit ag-

vated murder or murder is a felony of the first degree.

a to commit any other offense is an offense of

OHIO REV. CODE ‘ANN 2902.02 provides:

(A) WWW

(1) Create a substantial risk of serious physical harm

B) Whoever violates this section is guilty of aggravated

ation ¢ dir On tek aoaee

All

mit aggravated murder in violation of OHIO REV. CODE

ANN. § 2923.01 (Page 1975).

Kiraly’s trial began on November 13, 1975.5 Before

opening arguments were made to the jury Kiraly’s counsel

moved to suppress the evidence seized from Gallo’s car, the

tetrytol and the blasting cap box, on the grounds that the

supporting affidavit was insufficient to establish probable

cause. Sperli submitted a brief in support of this motion.

The trial judge also listened to thorough oral arguments

from both defense and State counsels. After considering

the oral arguments and reviewing the brief and the cases

cited therein, the trial court denied the motion to suppress.

[7] Sperli also made a motion in limine to prevent the

prosecutor from impeaching Kiraly, if he took the stand,

4. OHIO REV. CODE ANN. 2923.01 provides in pertinent

(A) No person, with purpose to commit or to promote

or facilitate the commission of aggravated murder or murder,

3

4

Al5

on the basis of a 1969 conviction for assault on a federal

officer and a thirty-six year old conviction for armed

robbery. Sperli argued that if the prosecutor would be

allowed to impeach Kiraly on these convictions, he would

have to advise not to testify.“ The trial court

ruled that if Kiraly e stand, the prosecutor would

be able to inquire: Were you arrested and convicted

of a state or federal offense?”, but the prosecutor could not

examine on the detail or circumstances. The answers

would “go strictly to the credibility.” Kiraly did not

take the stand. During opening statements the prosecutor

remarked that Kiraly was known as “Mo the Mechanic,”

a hit man who made bombs.

At trial Greene testified that on May 9 and 11, 1975

he saw Kiraly and Gallo drive slowly by his house in a

green Oldsmobile with license number EL 805. Greene

also testified about his actions in his house immediately

preceding and following the blast. Kevin McTaggert, a

distant cousin of Greene, testified that on May 6, 1975 at

approximately 10:30 p.m. he saw a 1974 green Oldsmobile

with license number EL 805 drive by Greene’s house at

five miles an hour. Two men were in the car and the

car’s lights were not on. McTaggert also testified that

he had seen Kiraly drive past Greene’s house on five or

six different prior occasions.

Special FBI agents, who were assigned to investigate

organized crime, testified that Kiraly and Gallo had been

under surveillance and that on May 6 and 7, 1975, the

two were seen together in a green Oldsmobile which bore

license number EL 805. One of the agents also stated

Kiraly put on evidence of an alibi, and Sperli believed

that Kiraly's testimony in support of the alibi would be helpful

case.

7. Trial transcript, p. 1420.

Als

that Kiraly was known as Mo the Mechanic, but the trial

judge did not permit the agent to testify what mechanic

meant. An expert identified the yellow powder taken

from Gallo’s car as tetrytol and that a bomb made of

that substance caused the explosion.

Is] Pursuant to United States v. Wade, 388 U.S. 218,

87 S. Ct. 1926 (1967), before Thomas was permitted to

identify Kiraly before the jury, a voir dire was conducted

to determine if Thomas could identify Kiraly in court

based upon observations other than the line-up identifi-

cation. Thomas testified that at approximately 3:00 a.m.

on May 12, 1975 he was walking the streets because he

could not sleep.“ He saw a green Oldsmobile with two

men in it pass by Greene’s house. Shortly after that he

saw Kiraly, apparently carrying something under his arm,

walk behind Greene’s house. He saw Kiraly between six

to ten seconds. Kiraly was looking in his direction, and

Thomas was trying to discern if the individual was anyone

he knew.“ The prior facts about the line-up were also

discussed. The trial judge ruled that except for the ab-

sence of counsel, the line-up was not improper. After con-

sidering the factors enunciated by the Supreme Court in

Wade, the trial judge held Thomas could make an in-court

identification of Kiraly but that any testimony in reference

to the line-up would not be permitted.

f As part of the defense’s case, William Feller, a sur-

veyor, testified that given the positions of Thomas, the

buildings, the street, and certain cars parked behind

Greene’s house, it would have been impossible for Thomas

to have seen Kiraly. Feller also testified about inaccura-

8. At that time Thomas worked a night shift and that night

he had off. -

9. Thomas stated that if the person would have been some-

one he knew, he would have started a conversation.

Al7

cies in the State’s diagram of the area. The prosecution

extensively and rigorously cross-examined Feller.

During closing argument the prosecutor referred to

Kiraly as Mo the Mechanic, a professional hit man, a mem-

ber of organized crime and an indiscriminate killer. Twice

the judge sustained objections to such remarks.

After the trial judge had instructed the jury, Kiraly’s

counsel objected to the charge only on two grounds: the

wording of the arson charge and the giving of an instruc-

tion that no inference was to be taken from the fact that

Kiraly did not testify.

On November 28, 1975 the jury found Kiraly guilty

of aggravated arson and conspiracy to commit aggravated

murder.

191 In January, 1976 Kiraly moved for a new trial on

the grounds that new evidence had been discovered. On

January 23, 1976 the trial court held a hearing on this

motion. One of Thomas’ uncles testified that shortly before

the trial Thomas came to his house to pick up a pair of

pants for the court appearance. While there Thomas dis-

closed to the uncle that Thomas was going to be taken

care of by Danny Greene. After the trial the uncle saw

Thomas privately several times. On those occasions

Thomas revealed that when he has drinks with Greene,

Greene pats him on the back and says he is a nice guy,

that he was working for Greene and that he has done two

favors for Greene, one of which was an out-and-out lie.

However, at no time did Thomas say that Greene was

paying him for his testimony or that he lied in court.

These conversations were in private between Thomas and

his uncle; there is no evidence to indicate that the State

knew about the conversation. Thomas’ stepfather also

testified that on the weekend following the explosion

Al

Thomas told him that Thomas wanted to work for Greene.

Again there is no evidence that the State knew of his

conversation.

Finally at the hearing on the motion for a new trial,

Raymond Sacifini, the general overseer of the Gulf gas

station where Thomas worked in the summer of 1975, tes-

tified that on July 15 Thomas quit without notice or

explanation. On July 16 Sacifini discovered $1600 missing.

Warrants for Thomas’ arrest were issued and he was

eventually found in Florida. However, Sacifini further

testified that he didn’t know who took the money and

that no one was ever convicted for the theft. After listen-

ing to all the evidence the trial judge denied the motion

for a new trial.

On January 24, 1977 Kiraly filed a second motion for

a new trial based on new evidence. Kiraly supported

the motion with the affidavit of George Morgan and ex-

cerpts of Edward Bobey’s testimony at Gallo’s trial. Mor-

gan’s affidavit averred: George Morgan knew Greene on

a friendly basis for fourteen or fifteen years. Greene told

Morgan that Kiraly and Gallo were friends of a person

he disliked very much. Greene further told Morgan that

Greene was framing Kiraly and Gallo for the explosion

and that he had something put in Gallo’s car. Greene had

connections with the Cleveland Police Department. [10]

Finally Greene revealed he had some witnesses in the palm

of his hand, and that one was an ex-marine, who was

being paid to testify."° Bobey, a police officer, inventoried

Gallo’s car, after it had been impounded pursuant to the

search warrant. But he did not inventory the blasting

cap box, nor could he even recall seeing such a box in

the ear. On January 25, 1977 the trial court denied

Kiraly’s second motion for a new trial.

10. Thomas had been in the Marine Corps.

Ald

Kiraly appealed his conviction to the Court of Appeals

of Cuyahoga County. On October 21, 1977 in upholding

the guilty verdict the court ruled: The evidence sup-

ported the jury’s finding of guilt. The warrant to search

the automobile was proper because the underlying af-

fidavit was sufficient to support a finding of probable

cause. The admission into evidence that the FBI unit,

which investigates organized crime, had Kiraly and Gallo

under surveillance and that Kiraly was known as Mo the

Mechanic was not so suggestive of criminal reputation as

to constitute prejudicial error. Similarly the prosecutor’s

remarks that Kiraly was a hit man were not so prejudicial

as to deny Kiraly a fair trial. The trial court correctly

applied the Wade decision in permitting the in-court

identification. The trial court correctly denied the first

motion for a new trial.

Kiraly also appealed the denial of his second motion

for a new trial. The Court of Appeals dismissed the argu-

ment on procedural grounds. Ohio Criminal Rule 33(B)

requires that a motion for new trial on account of newly

discovered evidence shall be filed within 120 days after

the verdict was rendered. After that time “such motion

shall be filed within seven days from an order of the

court finding that he was unavoidably prevented from

discovering the evidence within the 120 day period.” For

the second motion for a new trial, the trial court never

issued an order finding that Kiraly was unavoidably pre-

vented from finding the new evidence within the 120-day

period. Accordingly the Court of Appeals held the suf-

ficiency of the materials submitted to the trial court “could

not be decided by either the trial court or this court. [11]

Thus, whether the evidence contained in the affidavit war-

ranted a new trial, was not before the court. Inasmuch as

there is no time limit provided for in Criminal Rule 33,

A20

{Kiraly] is not precluded from complying with its pro-

visions requiring a trial court finding that he was un-

avoidably prevented from discovering the new evidence

within the 120 day period.”

On March 30, 1978 the Supreme Court of Ohio denied

Kiraly’s motion for appeal.

II.

Kiraly's first claim, that the State failed to disclose

agreements of leniency it had with two of its witnesses,

and his fourth claim, that the State suppressed Thomas’

original identification statement, descriptions of other cars

in the area of the explosion and Greene’s status as an

informant and improper participation in the trial, are

denied because Kiraly has not exhausted his State remedies.

The federal habeas corpus statute, 28 U.S.C. § 2254(b)

and (c), requires that a petitioner for habeas corpus relief

must exhaust all available state remedies before seeking

relief in the federal courts:

(b) An application for a writ of habeas corpus

in behalf of a person in custody pursuant to the judg-

ment of a State court shall not be granted unless it

appears that the applicant has exhausted the remedies

available in the courts of the State, or that there is

either an absence of available State corrective process

or the existence of circumstances rendering such

process ineffective to protect the rights of the prisoner.

(c) An applicant shall not be deemed to have

exhausted the remedies available in the courts of the

State, within the meaning of this section, if he has

the right under the law of the State to raise, by any

available procedure, the question presented.

A21

The concerns of federalism mandate this requirement.

Keener v. Ridenour, 594 F.2d 581, 584 (6th Cir. 1979).

The issues presented in the first and fourth claims

were never presented at trial, in a motion for new trial

or to the Court of Appeals. Furthermore, a resolution

of these claims depends upon factual allegations which

cannot be determined by examination of the files and

records of the case.

[12] Accordingly, Kiraly can present the issues to the

courts of Ohio by a motion for new trial on account of

new evidence, Ohio Rule of Criminal Procedure 33 or by

Ohio’s post-conviction relief statute, OHIO REV. CODE

ANN. § 2953.21 (Page 1975).

Subsection (a) of section 2953.21 only permits post-

conviction relief to “persons convicted of a criminal of-

fense” who claim that “there was such a denial or infringe-

ment of his rights as to render the judgment void or void-

able under the Ohio Constitution or the Constitution of the

United States.” In State v. Milanovich, 42 Ohio St. 2d 46,

235 N.E.2d 540 (1975), the Ohio Supreme Court elaborated

on the concept of what is a voidable judgment:

Where a claim raised by a petitioner for post-

conviction relief under R.C. 2953.21 is sufficient on its

face to raise an issue that petitioner’s conviction is void

or voidable on constitutional grounds, and the claim

is one which depends upon factual allegations that

cannot be determined by examination of the files and

records of the case, the petition states a substantial

ground for relief. Syllabus 1 of the Opinion.

The Sixth Circuit in Steed v. „ 459 F. ad 475

dem Cir. 1972) bed Ohio's statute is a

— - a petitioner must exhaust habeas relief is

A22

Similarly Kiraly has not exhausted claim three (a)

that the State by introducing the blasting cap box into evi-

dence participated in perjury because the box was actually

planted in Gallo’s car. Although Kiraly did present this

matter to the trial court in a motion for a new trial, the

Court of Appeals specifically held that because a pro-

cedural requirement of Ohio Criminal Rule 33 had not been

fulfilled, the trial court “could not” decide the motion on

its merits. The Court of Appeals further held that because

Rule 33 has no time limit, Kiraly could seek redress at the

trial court.

Kiraly’s arguments that the State cannot assert ex-

haustion because of waiver or estoppel are not persuasive.

The state admitted that Kiraly had exhausted his state

remedies for the claims he asserted in his initial petition.

However, these claims were not in the initial petition.

[13] In Keener, supra, the Sixth Circuit held that “the

doctrine of exhaustion . . . reflects a policy of comity be-

tween state and federal courts, an accommodation of our

federal system . . 594 F.2d at 584. Thus, federalism de-

mands that the State have the “initial opportunity to pass

upon and correct alleged violations of its prisoners’ federal

rights.” Id. Therefore, this court holds that Kiraly has

not exhausted claims one, three (a), and four.

Kiraly’s second claim is that the state deprived him of

his Fourteenth Amendment right to due process because it

withheld information and made affirmative misrepresenta-

tions about one of its witnesses, Tim Thomas: Although

the State maintained that Thomas was of good character

and was unavailable for some inexplicable reason, the State

knew that he had robbed his employer and was being held

in custody in Florida after he had fled Ohio.

In a series of cases, the United States Supreme Court

has established the standards to determine what pros-

5

*

A23

ecutorial misconduct results in a constitutional deprivation

of due process. The court has held “that a conviction ob-

tained by the knowing use of perjured testimony is funda-

mentally unfair and must be set aside if there is any rea-

sonable likelihood that the false testimony could have af-

fected the judgment of the jury. United States v. Agurs,

427 U.S. 97, 96 S. Ct. 2392 (1976). In Brady v. Maryland,

373 U.S. 83, 83 S. Ct. 1194 (1963) the Court ruled “that the

suppression by the prosecution of evidence favorable to

an accused upon request violates due process where the

evidence is material either to guilt or to punishment, ir-

respective of the good faith or bad faith of the prosecution.”

373 U.S. at 87, 83 S. Ct. at 1196. In Agurs, supra, the Court

crystalized its decisions by holding that “the prosecutor

will not have violated his constitutional duty of disclosure

unless his omission is of sufficient significance to result in

the denial of the defendant’s right to a fair trial.” 96 S. Ct.

at 2400. Very recently the Court reiterated this holding

in Smith v. Phillip, ...... U.S. ......, . 8, Ct., 50

LW 4190 (1982): “the touchstone of due process analysis

in cases of alleged prosecutorial misconduct is the fairness

of the trial, not the culpability of the prosecutor.” 50 LW

at 4193.

[14] In the instant case the prosecutor’s failure to dis-

close Thomas’ possible involvement in the theft of the Gulf

station did not make Kiraly’s trial fundamentally unfair.

theft and no one ever convicted of the theft. Thomas’

13 v. Kansas, 317 U.S. 213, 63 S. Ct. 177, 87 L.Ed. 214

1942); Alcorta v. Texas, 355 U.S. 28, 78 8. Ct. 1 2 L.Ed.2d 9

(1957); N. v. IUinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L.Ed.2d

1217 ; Miller v. Pate, 386 U.S. 1, 87 S. Ct. 785, 17 L.Ed.ad

690 v. United States, 465 U.S.

0 I . 150, 92 8. Ct.

31 104 (1972); Donnelly v. See 416 US. —

94 8. Ct. 273, 38 216 (1973).

A2⁴

arrest warrants would not have been admissible at Kiraly's

trial. United States v. Pennix, 313 F.2d 524 (4th Cir.

1963).** Accordingly Kiraly’s second claim is denied.

Kiraly’s claim three (b) asserts that the State by

presenting evidence, that Greene did not know Thomas,

participated in perjury because in fact Thomas worked for

Greene. The Supreme Court has consistently held that

the prosecutor’s knowledge of the perjured testimony is a

prerequisite to a constitutional deprivation. In Mooney v.

Holohan, 294 U.S. 103, 55 S. Ct. 340 (1935) the Court held

that due process has been violated if the prosecution’s case

includes perjured testimony and that “the prosecution

knew or should have known of the perjury.” See also,

Agurs, supra, and the cases cited in footnote 13.

In the instant case there is no evidence that the pros-

ecution knew or should have known that Thomas was

working for Greene. Kiraly relies on the testimony of

Thomas’ uncle and stepfather to show that Thomas was

working for Greene. These conversations were held in

private between Thomas and the respective parties. In

fact the conversation Thomas had with his uncle, in which

Thomas revealed that he was being taken care of by

Greene, occurred in the uncle’s bedroom. Accordingly this

court denies Kiraly relief on claim three (b).

Kiraly alleges in his fifth claim that his due process

rights were violated when the State courts denied his mo-

tion for a new trial based upon testimony establishing bias

14. Kiraly’s petition also alleges that the State also withheld

record. However

A25

and interest on the part of Thomas, which was suppressed.

1151 Again Kiraly relies on the testimony of Thomas’ step-

father and uncle to establish bias and interest. To the

extent that the claim contends that Kiraly’s due process

rights were violated because the prosecution suppressed evi-

dence, the claim is denied. There is no evidence that the

prosecution knew or should have known of such testimony.

Mooney, supra; Agurs, supra. To the extent that the claim

contends Kiraly’s due process rights were violated because

his motion for a new trial was denied, the claim is also de-

nied. Subsection (d) of the federal habeas corpus act pro-

vides that if the petitioner has received a full, fair and

adequate hearing on the merits in a state court proceeding,

the determination of a factual issue by the state court shall

be presumed to be correct and the burden shall rest upon

the petitioner to establish by convincing evidence that the

factual determination by the state court was erroneous.

In Sumner v. Mata, 449 U.S. 539, 101 S. Ct. 764 (1981),

the state court of appeals and the federal district court

held that the pretrial photographic identification employed

by the police did not violate the petitioner’s constitutional

rights. The federal court of appeals reversed and held

that the procedure was violative of the Constitution. The

United States Supreme Court reversed and held the hear-

ing by the state court of appeals was presumed to be correct

pursuant to 28 U.S.C. § 2254(d) and that the petitioner

had not overcome the presumption. In Poole v. Perini, 659

F.2d 730 (6th Cir. 1981) the Sixth Circuit held that the

state courts in denying the petitioner’s claim for relief on

ineffective assistance of counsel had given the petitioner

a full, fair and adequate hearing. Pursuant to section 2254

this hearing was presumed to be correct. The court further

held that the petitioner had not overcome the presumption

and concluded that therefore the federal courts may not

‘ \

A26

“substitute its review of the record for the determination

by the state court.” Id. at 736.

In the instant case Kiraly received a full, fair and

adequate hearing on his motion for new trial at both the

State trial court and the State appellate court. Kiraly

has not presented any new evidence to establish that the

State determination was erroneous. Thus, Kiraly’s fifth

claim is denied. [16] In any event, the denial of the mo-

tion for a new trial, based on the evidence presented at

the hearing, was not constitutional error.”

Kiraly’s sixth claim contends that his due process

rights were violated because the prosecutor introduced

inflammatory evidence and made improper remarks dur-

ing opening and closing arguments: Kiraly, also known as

Mo the Mechanic, is a hit man. The standard to be used

in determining if a prosecutor’s argument violates the Four-

teenth Amendment is whether the prosecutorial argument

is so egregious so as to render the entire trial funda-

mentally unfair. Donnelly v. DeChristoforo, 416 U.S. 637,

94 S. Ct. 1868 (1974) and Cook v. Bordenkircher, 602 F.2d

117 (6th Cir. 1979), cert, denied, 444 U.S. 936 (1979). In

applying this standard the court must evaluate the re-

marks in the context of the entire trial: “whether the

remarks have a tendency to mislead the jury, whether they

are isolated or extensive, whether they were deliberately

or accidently placed before the jury and the strength

of the competent proofs introduced to establish the guilt

of the accused.” Cook, Id. at 120; and United States v.

Leon, 534 F.2d 667, 679 (6th Cir. 1976).

The remarks made by the prosecutor were few in an

extensive trial. The trial judge twice sustained objections

| 15. Because of the State court of appeals’ ruling on the

second motion for a new trial, Kiraly has not exhausted his state

A27

to such remarks, and the remarks were such that the jury

would not be misled. Moreover, Kiraly fully presented

this issue to the state appellate court and was denied relief.

That determination is presumed to be correct and Kiraly

has not offered new evidence to rebut that presumption.

28 U.S.C. § 2254(d); Sumner, supra; and Poole, supra.

Accordingly Kiraly’s sixth claim is without merit.

Kiraly’s seventh claim argues that because his counsel

was prevented from being present at the line-up identifi-

cation, Thomas’ in-court identification of Kiraly was ir-

reparably tainted and the trial court erred in permitting

the in-court identification.

[17] In United States v. Wade, 388 U.S. 218, 87 S. Ct.

1926 (1967) and Gilbert v. California, 388 U.S. 263, 87 S.

Ct. 1951 (1967) the Supreme Court established that an

accused has a constitutional right to have his counsel

present at a line-up once prosecution has been initiated.

Failure to have counsel present at the line-up precludes

the State from introducing any evidence of the line-up

observations of the suspect other than the line-up iden-

tification.” Wade, 388 US. at 240, 87 S. Ct. at 1939.

Holland v. Perini, 512 F.2d 99, 102 (6th Cir. 1975), cert.

denied, 423 US. 434 (1975). In applying this standard

the court must consider the totality of the circumstances

surrounding the identifications, including the opportunity

the witness had to view the defendant at the time of the

crime, the witness’ degree of attention, the accuracy of

|

|

|

of certainty demonstrated by the witness at the confronta-

A28

tion, the length of time between the crime and the con-

frontation and the suggestiveness of the line-up. Wade,

supra. Webb v. Havener, 549 F.2d 1081 (6th Cir. 1971),

cert. denied, 434 U.S. 873 (1977); United States v. Rowan,

518 F.2d 685 (6th Cir. 1975), cert. denied, 423 U.S. 949

(1975).

In the instant case sufficient independent basis existed

to permit the in-court identification. Thomas looked di-

rectly at the individual’s face for six to ten seconds.

Thomas had an intense degree of attention. Only a month

passed between the identification and the explosion. He

was very certain that Kiraly was the individual, and the

line-up was not impermissibly suggestive. Moreover, Kiraly

was afforded a full, fair and adequate hearing on this issue

in the state courts. The determination, that the in-court

identification was proper, is presumed to be correct and

Kiraly has not rebutted that presumption. 28 U.S.C.

§ 2254(d). Sumner, supra; and Poole, supra.

1181 Kiraly’s eighth claim, that there was insufficient

evidence to convict him, is also without merit. In Jackson

v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979), the Supreme

A29

green Oldsmobile. He then saw Kiraly, apparently carry-

ing something, walk behind Greene’s house. A bomb made

of four or five pounds of tetrytol, a substance not legally

available to the general public, completely destroyed

Greene’s house. Tetrytol was found in Gallo’s car the

day of the explosion.

Kiraly’s ninth claim argues that the State presented

eyewitness testimony which it knew or should have known

was physically impossible, and thus the State presented

perjured evidence to the jury. To support this argument

Kiraly relies on the testimony of his expert witness,

William Feller, the surveyor. At trial Feller gave his

opinion that given the position of the objects in the

neighborhood, Thomas could not have seen a man, the

size of Kiraly walking behind Greene’s house. Although

Kiraly phrases this argument in terms of presenting per-

jured testimony, the argument really is a mere rephrasing

of the sufficiency of evidence argument. Kiraly admits

this himself on page seventeen of his brief in opposition

filed February 1, 1980. The jury heard all the testimony

and was best able to weigh the evidence and the credibility

of the witnesses. Accordingly, the court denies Kiraly’s

ninth claim for the same reasons it denied his eighth claim.

1191 Kiraly’s tenth claim, that the trial court defined

the State’s burden of proof in such a manner as to allow

conviction without a finding of guilt beyond a reasonable

doubt, is without merit. Ohio Criminal Rule 30 prc

in pertinent part:

A party may not assign as error the giving or the

failure to give any instructions unless he objects

thereto before the jury retires to consider its verdict,

stating specifically the matter to which he objects and

the grounds of his objection. Opportrnity shall be

A30

given to make the objection out of the hearing of

the jury.

At trial Kiraly’s counsel did not object to any part

of the instruction on the burden of proof. In Wainwright

v. Sikes, 433 U.S. 72, 97 S. Ct. 2497 (1977), the Supreme

Court held absent a showing of “cause” and “prejudice,”

a petitioner may not raise in a habeas corpus petition a

claim which he did not raise at the trial court and on

which the state imposed a contemporaneous objection rule.

Kiraly’s eleventh claim, that his Fourteenth and Sixth

Amendment rights to cross-examination were violated be-

cause his counsel was denied the opportunity to inspect

the police’s summary of Greene’s prior statement, is also

meritless. This allegation is conclusory in nature and

devoid of any sufficient factual substantiation. The “re-

citation of standard claims and stock phrases will not be

regarded an adequate claim for habeas corpus relief.”

Bernier v. Moore, 441 F.2d 395, 396 (Ist Cir. 1971); United

States v. Jones, 614 F.2d 80 (Sth Cir. 1980), cert denied,

446 U.S. 945 (1980); and Gray v. Wingo, 391 F.2d 268 (6th

Cir. 1967). See also: Agurs, supra; and Phillips, supra.

Kiraly’s twelfth claim is that the trial court denied

him his rights under the Fifth and Fourteenth Amendments

by that if Kiraly testified, the prosecutor could im-

peach with a conviction that was thirty-six years old.

This is a state evidentiary matter. In Bell v. Arn, 536 F.2d

123 (6th Cir. 1976), and Burks v. Egeler, 512 F.2d 221 (6th

Cir. 1975), cert. denied, 423 U.S. 937 (1975), the Sixth Cir-

cuit held that state court rulings on the admissibility of

evidence may not be questioned in a federal habeas corpus

proceeding unless it impugns fundamental fairness. See

also: United States ex rel. Hickey v. Jeffes, 571 F.2d 762

(3d Cir. 1978); Dinkins v. Wainwright, 451 F.2d 587 (5th

A31

Cir. 1970); and Matha v. Swenson, 449 F.2d 175 (8th Cir.

1971). After reviewing the record, this court holds that

the trial court’s ruling did not impugn fundamental fair-

ness.

[20] Kiraly’s final claim is that his rights under the

Fourth and Fourteenth Amendments were violated be-

cause evidence, seized on the basis of a defective search

warrant, was introduced at trial. Although Kiraly asserts

that the trial court refused to allow a full and proper

hearing on his motion to suppress, a review of the record

reveals that the trial court heard all of the arguments

on the motion to suppress as well as examined the brief

Kiraly submitted to the court on the matter. In Stone v.

Powell, 428 U.S. 465, 96 S. Ct. 3037 (1976), the Supreme

Court held “that where the state has provided an oppor-

tunity for a full and fair litigation of a Fourth Amend-

ment claim, the Constitution does not require that a state

prisoner be granted federal habeas corpus relief on the

ground that evidence obtained in an unconstitutional search

or seizure was introduced at his trial.” 428 US. at 482,

96 S. Ct. at 3046.

Accordingly, the petition for writ of habeas corpus is

denied.

IT IS SO ORDERED.

/s/ Joun M. Manos

United States District Judge

Nees

A32

OPINION OF THE COURT OF APPEALS OF

CUYAHOGA COUNTY, OHIO...

(Decided October 21, 1977)

IN THE COURT OF APPEALS OF OHIO

ErcutH District, CuyAHoca County

STATE OF OHIO,

Appellee,

vs.

WILLIAM KIRALY,

Appellant.

[56 Ohio App. 2d 37]

Criminal procedure—Search and seizure—Contents of af-

fidavit for search warrants—Right to counsel—Does

not apply, when—Defendant not charged or indicted—

Applicable, when—Crim. R. 33(B).

1. Search warrants may issue only upon a showing of

probable cause. To conclude that a reasonable infer-

ence of probable cause was drawn by the magistrate,

the affidavit must set forth sufficient underlying cir-

cumstances to support the inference of probable

cause. Where the affidavit relies on information

-supplied by an informant, there must be a basis on

which to conclude that the supplied information is

credible.

2. The Sixth Amendment right to counsel at post-indict-

ment confrontations does not apply to confrontations

conducted before the defendant has been indicted

or otherwise formally charged relative to the crime

A33

in question. State v. Sheardon (1972), 31 Ohio St.

2d 20, following Kirby v. Illinois (1972), 406 U. S.

682.

However, where the record discloses that an ar-

rest warrant has been issued and returned and that

bond has been set for the crime charged in the ar-

rest warrant, the accused has been “formally

charged” and is entitled to counsel at confrontations

held subsequent to the arrest and setting of bond,

though he has not yet been indicted.

3. Criminal Rule 33 (B) requires that when a motion for

new trial on account of newly discovered evidence is

not filed within one hundred twenty days after the

day upon which the verdict was rendered, that “such

motion shall be filed within seven days from an

order of the court finding that he was unavoidably

prevented from discovering the evidence within the

one hundred twenty day period.” (Emphasis added).

Where a [38] motion for new trial on account of

newly discovered evidence does not comply with

the requirements of this section, that motion should

be dismissed.

(No. 36008—Decided October 21, 1977.)

AppgaL: Court of Appeals for Cuyahoga County.

Mr. John T. Corrigan, prosecuting attorney, for ap-

pellee.

Mr. Ralph D. Sperli, for appellant.

Jacxson, J. On June 12, 1975, defendant appellant,

William Kiraly, and Joseph Gallo, were jointly indicted

for the following criminal offenses: attempted aggra-

vated murder in violation of R. C. 2903.01, R C. 2923.02;

aggravated arson in violation of R. C. 2909.02; and con-

A34

spiracy to commit aggravated murder in violation of R. C.

2923.01. At arraignment defendant Kiraly entered a plea

of not guilty.

A jury trial was commenced on November 13, 1975,

with defendant Kiraly being tried separately from Joseph

Gallo. Defendant was found guilty as charged on the ag-

gravated arson and the conspiracy charges. The charge

of attempted aggravated murder was quashed pursuant

to R. C. 2941.32. Defendant was sentenced to serve from

five to twenty-five years under each charge upon which

he was convicted, the sentences to run concurrently.

It is from this judgment and sentence that defendant

appeals. The following errors are assigned:

“First Assignment of Error.

“The Court erred as a matter of law and to the prej-

udice of the appellant in overruling the appellant’s Mo-

tion to Suppress Evidence because the affidavit for the

search warrant did not present a substantial basis for the

court to find that the information was credible.

“Second Assignment of Error.

“The Court erred as a matter of law and to the prej-

udice of the appellant in overruling the appellant’s Mo-

tion to Suppress Evidence because the affidavit upon which

[39] the warrant issued contained material false or mis-

leading statements as a result of the affiant’s failure to

disclose how he obtained hearsay information.

“Third Assignment of Error.

“The trial Court erred as a matter of law and to the

prejudice of the appellant by not granting appellant’s

Motion for a Mistrial due to or in the alternative for not

instructing the jury to disregard the testimony as to ap-

A35

pellant’s criminal reputation alleged when the appellant

did not testify on his own behalf.

“Fourth Assignment of Error.

“The trial Court erred as a matter of law and to the

prejudice of the appellant when it overruled appellant’s

Motion for Judgment of Acquital [sic] at the close of the

State’s case.

“Fifth Assignment of Error.

“The trial Court erred as a matter of law and to the

prejudice of the appellant in allowing the State’s witness,

Tim Thomas, to make an in Court identification of the

appellant, that he was not allowed to have the assistance

of counsel at the lineup in which that witness identified

appellant.

“Sixth Assignment of Error.

“The Court erred as a matter of law and to the prej-

udice of the appellant by not granting appellant’s motion

for a mistrial based on appellant’s objection to the prose-

cutor’s closing argument.

“Seventh Assignment of Error.

“The Court erred as a matter of law and to the prej-

udice of the appellant by denying his motion for a new

trial.

“Eighth Assignment of Error.

“The trial Court erred as a matter of law and to the

prejudice of the appellant by refusing to allow appellant's

counsel to contact and obtain statements from jurors as

CTT

had on them.

yal

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A6

.“Ninth Assignment of Error. }

“The trial Court erred as a matter of law and to the

prejudice of the appellant by overruling appellant’s Motion

[40] for Judgment of Acquital [sic] at the close of appel-

lant’s case.”

Defendant’s fourth and ninth assignments of error,

which challenge the sufficiency of the evidence at the close

of the state’s case and at the close of all the evidence will

be considered first.

The record discloses that defendant presented evidence

after the trial court denied his motion for acquittal at the

close of evidence presented by the state; consequently, he

is precluded from challenging the sufficiency of the evi-

dence at the close of the state’s case, State v. Larry (1975),

44 Ohio App. 2d 92. The fourth assignment of error by

defendant is not well taken.

The record discloses the following testimony:

At approximately 3.30 or 3:45 on the morning of

May 12, 1975, the combination office-residence of Daniel

Greene was destroyed by an explosion. At the time of the

explosion, the building was occupied by Daniel Greene

and Miss Denise Schmidt. The explosion was caused by

the detonation of four or five pounds of tetrytol, proba-

bly placed on the first floor of the building on the side

facing Waterloo Road.

Shortly before the explosion Tim C. Thomas was in

front of his house, not far from the residence of Daniel

Greene, smoking a cigarette. At that time he observed a

green Oldsmobile, with two individuals in the front seat,

drive slowly in front of him and proceed toward an alley

near the residence of Daniel Greene, where the car

stopped briefly. The car then proceeded to turn into Water-

—

A37

loo Road. Mr. Thomas, possibly because he heard a sound,

walked to a driveway across the street where he ob-

served a man carrying something behind the residence of

Daniel Greene; Mr. Thomas lost sight of the man as the

man went into an unlighted area. Mr. Thomas identified

defendant as the man he saw behind the residence of Mr.

Greene.

A 1974 green Oldsmobile Regency with license num-

ber EL 805 was seized by police and searched. This car

was leased to Joe Gallo by Jet Auto Leasing. Mr. Thomas

[41] identified this car as the one he had observed near the

residence of Daniel Greene shortly before the explosion.

Yellow particles were removed from the trunk of this auto-

mobile. Analysis of the particles indicated that they were

tetrytol. Tetrytol is not available to the general public

through lawful means.

Daniel Greene testified that he had seen defendant

and Joe Gallo driving slowly in front of his house on

May 9 and May 11 in a green Oldsmobile or Buick with

license number EL 805, and in two different black Cadil-

lacs on different occasions prior to May 9, 1975. Kevin

McTaggert, a friend of Daniel Greene, testified that on

May 6, 1975, at 10:30 p. m. he observed a 1973 or 1974

green Oldsmobile with license number EL 805 drive slowly

in front of the residence of Daniel Greene, with the head-

lights off. Two men whom McTaggert was unable to see

clearly, were in the car. Mr. McTaggert had observed

defendant driving in the area in a black Cadillac on five or

six prior occasions.

residence at 2 p.m. on May 6, 1975. On May 7, 1975, de-

fendant’s black Cadillac was again parked in front of

A38

the residence of Joseph Gallo. However, on May 7, 1975,

the black Cadillac bore license B 12285, while a green

Oldsmobile bore license EL 805. At 7:30 p. m. Gallo and

defendant left the area in the Oldsmobile.

The essential elements of the crime of aggravated

arson, pursuant to provisions of R. C. 2909.02, are:

“(A) No person, by means of fire or explosion, shall

knowingly:

“(1) Create a substantial risk of serious physical

harm to any person;

“(2) Cause physical harm to any occupied structure.”

There was evidence presented that the occupied resi-

dence of Daniel Greene was blown up by the explosive

tetrytol. Defendant was seen near the residence shortly

before the explosion carrying something. Particles of the

explosive were found in the trunk of a car in which

defendant [42] had been seen riding and which was seen

in the immediate area shortly before the explosion.

We find the above evidence sufficient to support the

jury’s finding the defendant guilty of aggravated arson.

The provisions of R. C. 2923.01, relating to the crime

of conspiracy, provide in part:

“(A) No person, with purpose to commit or to pro-

mote or facilitate the commission of aggravated murder

or murder, kidnapping, compelling prostitution or pro-

moting prostitution, aggravated arson or arson, aggra-

vated robbery or robbery, aggravated burglary or burg-

lary, or a felony offense of unauthorized use of a vehicle,

_ “(1) With another person or persons, plan or aid in

planning the commission of any such offense;

A39

“(2) Agree with another person or persons that one

or more of them will engage in conduct which facilitates

the commission of any such offense.

“(B) No person shall be convicted of conspiracy un-

less a substantial overt act in furtherance of the conspir-

acy is alleged and proved to have been done by him or a

person with whom he conspired, subsequent to the ac-

cused’s entrance into the conspiracy. For purposes of this

section, an overt act is substantial when it is of such char-

acter as to manifest a purpose on the part of the actor

that the object of the conspiracy should be completed.”

The provisions of R. C. 2903.01, relating to the crime

of aggravated murder provide the following elements:

“(A) No person shall purposely, and with prior cal-

culation and design, cause the death of another.

“(B) No person shall purposely cause the death of

another while committing or attempting to commit, or

while fleeing immediately after committing or attempting

to commit kidnapping, rape, aggravated arson or arson,

aggravated ratjlery or robbery, aggravated burglary or

burglary, or escuye.”

There was evidence adduced at trial that defendant

and another person repeatedly drove slowly in the im-

mediate vicinity of the residence of Daniel Greene in the

[43] days and weeks preceding the demolition of the resi-

dence. Moreover, a car with two occupants who could not

be seen clearly, in which defendant and another person

had regularly been seen in the neighborhood, and which

bore a license plate which had been seen on defendant's

own car, was seen near the residence of Daniel Greene

shortly before the explosion. As described in the preced-

ing testimony, defendant was seen carrying an object in

the yard of Daniel Greene just prior to the explosion.

A40

The demolition of an occupied structure by two in-

dividuals is sufficient to indicate agreement to engage in

conduct in which the object is purposely to cause the death

of any occupants of the structure, and further indicates

prior design and calculation.

Upon review of the record, we conclude that the evi-

dence adduced at trial is sufficient to sustain the jury’s

verdict of guilty of conspiracy.

Therefore, we find the ninth error assigned by defen-

dant to be without merit.

Defendant’s first and second assignments of error con-

tend that the trial court erred in overruling the motion

by defendant to suppress evidence because of alleged de-

fects in the affidavit for che search warrant. These as-

signed errors will be considered together.

Warrants may issue only upon a showing of probable

cause. United States v. Ventresca (1965), 380 U. S. 102.

In Spinelli v. United States (1969), 393 U. S. 410, the court,

at 419, reviewed the concept of “probable cause”:

“* * * In holding as we have done, we do not retreat

from the established propositions that only the probability,

and not a prima facie showing, of criminal activity is the

standard of probable cause, Beck v. Ohio, 379 US 89, 96,

13 L Ed 2d 142, 147, 85 S Ct 223 (1964); that affidavits of

probable cause are tested by much less rigorous standards

than those governing the admissibility of evidence at

trial, McCray v. Dlinois, 386 US 300, 311, 18 L Ed 2d 62,

70, 87 S Ct 1056 (1967); that in judging probable cause

issuing magistrates are not to be confined by niggardly

limitations or by restrictions on the use of their common

[44] sense, United States v. Ventresca, 380 US 102, 108,

13 L Ed 2d 684, 688, 85 S Ct 741 (1965); and that their

determination of probable cause should be paid great def-

A4l

erence by reviewing courts, Jones v. United States, 362

US 257, 270-271, 4 L Ed 2d 697, 707, 708, 80 S Ct 725, 78

ALR 2d 233 (1960).”

In Aguilar v. Texas (1964), 378 U. S. 108, the court

states at 111, that:

The point of the Fourth Amendment, which often

is not grasped by zealous officers, is not that it denies law

enforcement the support of the usual inferences which

reasonable men draw from evidence. Its protection con-

sists in requiring that these inferences be drawn by a

neutral and detached magistrate instead of being judged

by the officer engaged in the often competitive enterprise

of ferreting out crime.’ Johnson v. United States * * * at

333 US 13-14, 92 L Ed at 440.”

The court goes on to say that the duty of the review-

ing court is to determine whether the magistrate per-

formed his “neutral and detached” function, i. e., to de-

termine whether the magistrate drew reasonable inferences

from the affidavit. To conclude that a reasonable infer-

ence of probable cause was drawn, the affidavit must set

forth sufficient underlying circumstances to support the

inference of probable cause. Additionally, where the affi-

davit relies on information supplied by an informant, there

must be a basis on which to conclude that the supplied

information is credible. Aguilar, supra; Spinelli, supra;

accord, State v. Dodson (1974), 43 Ohio App. 2d 31.

The affidavit on which the challenged search warrant

was issued was made by Andrew Vanyo, a member of the

Intelligence Unit of the Cleveland Police Department. The

defense sought to suppress evidence of particles of the

explosive—which particles matched the explosive used in

the bombing—found in the trunk of the green Oldsmobile

with license EL 805.

A

The affidavit states in relevant part that:

A. The affiant was involved in the investigation of

the bombing of the home of Daniel Greene.

B. The affiant averred that defendant and Joe Gallo

[45] had extensive police records; that defendant and Joe

Gallo had dealings with recent victims of gangland slayings

and that a note removed from the automobile of one of

the victims suggested that Daniel Greene was under sur-

veillance.

C. Investigation by affiant revealed that a green Olds-

mobile with license number EL 805 was leased to Joe

Gallo, and that a black 1969 Cadillac was owned by de-

fendant.

D. One informant advised that on May 9, 1975, he

observed what appeared to be a black Cadillac bearing

license EL 805 cruising in the vicinity of the Daniel Greene

home. A second informant advised that at approximately

10 p. m. on May 11, 1975, he observed a black Cadillac

with license EL 805 stop in front of a tavern several doors

from the residence of Danny Greene. A third informant,

apparently relating a report from Daniel Greene, advised

that on May 7, 1975, an automobile appearing to be a 1973

green Buick with license plate EL 805 was seen driving

near the home of Daniel Greene.

E. The affiant stated that FBI agents had under sur-

veillance the black Cadillac of defendant and the green

Oldsmobile of Joe Gallo, and that their observations put

both Joe Gallo and defendant together in both the Cadillac

and Oldsmobile.

We find the above portions of the affidavit to give

sufficient. underlying circumstances to support a finding

of probable cause and consequently to support the issu-

A43

ance of a search warrant. When the criminal background

of the defendant and Joe Gallo and their relationship with

each other and relationship with victims of gangland slay-

ings, who in turn left evidence of surveillance of Daniel

Greene, are coupled with observations of cars belonging

to defendant and leased to Joe Gallo being in the im-

mediate vicinity of the residence of Daniel Greene in the

days preceding the bombing, there is a common sense basis

on which to conclude that incriminating evidence could be

found in one of the cars. The credibility of observations

by the informants derives from the separate observations

in which there apparently was a switching of license

[46] plates, and the related observations by the FBI which

put both defendant and Joe Gallo together in both cars.

Defendant’s first and second assignments of error are

not well taken.

Defendant’s third assignment of error argues that

the trial court erred by not granting the motion by de-

fendant for mistrial because of certain testimony sug-

gestive of defendant having a criminal reputation, or in

the alternative, for not instructing the jury to disregard

that testimony. Defendant points specifically to testimony

of an FBI agent to the effect that the defendant was under

surveillance by the organized crime unit of the FBI and

that defendant had nicknames of “Mo” and “The Me-

chanic” known to the FBI.

In State v. Craven (1973), 35 Ohio St. 2d 18, the

court, citing State v. Doll (1970), 24 Ohio St. 2d 130, states

at 22, that, [the inflammatory effect that results from

the introduction of evidence tending to show the com-

mission of another offense by the defendant was recog-

nized as generally so prejudicial as to justify a reversal

under the facts of that case.” The court held in Doll that:

A44

“Evidence is admissible where it is of sufficient force

that it logically tends to prove or disprove a fact or issue

necessary to a decision in a particular case, unless such

evidence is excluded by a rule of law or policy not pri-

marily concerned with the probative force of evidence.”

Paragraph 3 of the syllabus.

In the present case we do not find the admission by

trial court of evidence alleged by appellant to be sugges-

tive of criminal reputation to constitute prejudicial error.

Testimony that an individual was under surveillance

and that the individual was known by nicknames to cer-

tain agents of the FBI is not unduly suggestive of a crim-

inal reputation in the manner of testimony of prior con-

victions of the defendant, Recent disclosures about the

scope of FBI surveillance suggests that many individuals

never convicted of offenses may at times have been under

surveillance.

Additionally, testimony that defendant was under sur-

veillance constituted necessary background for testimony

[47] that defendant and Joe Gallo had been observed

together prior to the bombing. Testimony that defendant

and Joe Gallo were together is relevant to establish agree-

ment, an element of conspiracy. This testimony, there-

fore, satisfies the test enunciated in Doll, supra.

“Conspiracy and common purpose among two or more

persons, to commit crime need not be shown by positive

evidence but may be inferred from circumstances sur-

rounding the act and from defendant’s subsequent con-

duct.

“Participation in criminal intent may be inferred from

presence, companionship and conduct before and after the

offense is committed.” State v. Pruett (1971), 28 Ohio

App. 2d 29.

—

A45

The third error assigned by defendant is not well

taken.

Defendant’s fifth assignment of error contends that

the trial court committed prejudicial error in not per-

mitting defendant’s counsel to be present at the lineup

in which Tim Thomas identified defendant. Defendant

does not develop facts to indicate that the lineup was

unnecessarily suggestive or conducive to an irreparable

mistaken identification. In his appellate brief at page 24,

defendant simply claims that “since appellant was denied

the right to have his attorney present, there is no way

of knowing how prejudicially the lineup was conducted.”

Defendant relies on Kirby v. Illinois (1972), 406 U. S.

682. The Ohio Supreme Court in State v. Sheardon

(1972), 31 Ohio St. 2d 20, cites Kirby to set forth the

following two-part test with regard to the right to counsel

at a pre-trial identification:

“1. The rule of United States v. Wade (1967), 388

U. S. 218, and Gilbert v. California (1967), 388 U. S. 263,

relative to the Sixth Amendment right to counsel at post-

indictment confrontations, does not apply to confronta-

tions conducted before the defendant has been indicted

or otherwise formally charged relative to the crime in

question. (Kirby v. Illinois [decided June 7, 1972],

U. 8. , followed.)

“2. The due process clause of the Fifth and Four-

teenth [48] amendments forbids any pre- or post-indict-

ment lineup that is unnecessarily suggestive and conducive

to irreparable mistaken identification. (Kirby v. Nlinois

{decided June 7, 1972), ....... U. S. ......., followed.)”

An arrest warrant for defendant was issued on

May 16, 1975. Defendant was arrested and bond was set

on June 10, 1975. The lineup was conducted on June 11,

A

1975. Defendant was indicted on June 12, 1975. The

challenged lineup was pre- indictment.

Defendant argues, in effect, that since an arrest war-

rant had been issued and since bond had been set prior

to the lineup, that defendant had been formally charged“

despite his not yet being indicted. As a result, defendant

urges that defendant had a right to counsel at the lineup.

We agree. *

It seems clear on this record that at the time of the

lineup defendant was “faced with the prosecutorial forces

of organized society and immersed in the intricacies of

substantive and procedural criminal law.” Kirby, supra

at 689. By the act of setting bond, we find it implicit

that a “formal charge” had been brought.

The court, in Gilbert v. California (1967), 388 U. S.

263, imposed a per se exclusionary rule for testimony of

a lineup identification where counsel was improperly

prevented from being present. The court states, at 273,

“[o]nly a per se exclusionary rule as to such testimony

can be an effective sanction to assure that law enforce-

ment authorities will respect the accused’s constitutional

right to the presence of his counsel at the critical lineup.”

In the present case, the trial court properly refused to

allow testimony as to the lineup identification of defen-

dant by Timothy Thomas.

The court, in United States v. Wade (1967), 388 U. S.

218, considered the question of whether an improper de-

nial of counsel at a lineup would require a per se exclu-

sion of an in-court identification. The court declined to

impose such a per se exclusion noting that the govern-

ment should first be given an opportunity “to establish

by clear and convincing evidence that the in-court iden-

tifications [49] were based upon observations of the sus-

A47

pect other than the lineup identification.” Id., at 239,

240.

In determining whether the in-court identification

was based upon observations other than the lineup iden-

tification, the court found, at 241, that the following fac-

tors should be considered, “the prior opportunity to

observe the alleged criminal act, the existence of any

pre-lineup description and the defendant’s actual descrip-

tion, any identification prior to lineup of another person,

the identification by picture prior to the lineup, failure

to identify the defendant on a prior occasion, and the

lapse of time between the alleged act and the lineup

identification. It is also relevant to consider those facts

which, despite the absence of counsel, are disclosed con-

cerning the conduct of the lineup.”

In the present case, under the following analysis of

the above factors, we agree with the conclusion by the

trial court allowing in-court identification of defendant

by Thomas. Thomas testified that he saw defendant for

from six to ten seconds, with defendant under a spotlight

at a distance of from 45 to 50 feet, and that defendant

looked directly at Thomas during that time. In the

initial description of defendant given by Thomas, Thomas

failed to include hair color, glasses and mustache. Thomas

did not identify defendant to police in a photographic

array; however, Thomas stated, “* * * I looked at about

twenty-five pictures, I think, a bunch of them . I

recognized him then, but I didn’t say anything * * * I

wanted to see the lineup.” Later Thomas added that

he did not identify the photo because he didn’t want

to become involved. The lapse of time from the bombing

to the lineup was one month.

Prior to the lineup Thomas stated that he was told

that defendant might or might not be in the lineup.

A48

Thomas was further told that if he did not see the man

whom he saw behind the Greene residence to say so and

“that would be it.” The judge was shown a photo of

five men in the lineup besides defendant and concluded

that they were of the same size and hair color, although

none had [50] the identical hair style. Defendant showed

a very high degree of certainty in the lineup identifica-

tion. “I am so sure that my hands were shaking” and

“I knew him when I first walked through the door.”

We agree with the trial court’s determination allow-

ing the in-court identification primarily because of the

opportunity Thomas had to observe defendant the night

of the bombing and because of the apparent regularity,

except for the absence of counsel, in the conduct of the

lineup itself, coupled with the certainty of the identifica-

tion by Thomas.

Defendant’s fifth assignment of error, is, therefore,

without merit.

The sixth assignment of error contends essentially

that defendant was denied a fair trial because of alleged

error in the closing argument by the prosecution. De-

fendant claims that the prosecutor improperly referred

to defendant as a part of organized crime and improperly

characterized him as a “professional hit man” and a

“killer.”

This court has held that:

“It is a broadly accepted general principle that a

prosecution argument outside the record, which influences

the jury adversely to the defendant, denies the defendant

a fair trial.” State v. Watson (1969), 20 Ohio App. 2d

115, 124.

The prosecution is, however, given some latitude in

closing argument. State v. Woodards (1966), 6 Ohio St.

+

3 8

ia

*

e

A49

2d 14. In Woodards the closing argument by the pros-

ecution included the following statements:

„ Woodards is a misfit like a gangrenous leg

on a diabetic body, like an inflamed, useless appendix

that threatens the body, the body and the society of the

state of Ohio.

He caused a cruel, unnecessary death. He asks

mercy from you. Yet, he showed none.

Remove him from society like you would a para-

ite.

The court found these statements “intemperate” and

1511 indicated that such remarks “might better have

been left unsaid,” but concluded in part that, “The jury

should be given credit for sufficient common sense and

sound judgment to discount the remarks made in this

case.” Id., at 24.

In Untied States v. Socony-Vacuum Oil Co. (1940),

310 U. S. 150, the court in finding the closing argument

not violative of due process rights noted that the chal-

lenged statements, although improper, were relatively

isolated instances in a lengthy trial and summation. See

generally, 40 L. Ed. 2d 886.

The bulk of the closing argument in the present case

was devoted to summarizing the evidence. The prosecu-

tion did, however, include comments connecting defen-

dant with organized crime of which there is relatively

little evidence in the transcript. While we, under the

posture of the evidence herein, are critical of the refer-

ences by the prosecution to defendant as a “killer” and

as a “professional hit man,” and although we do not

approve of the comments by the prosecution connecting

defendant with organized crime without a more substan-

The sixth error assigned by defendant is not well

taken.

The seventh assignment of error by defendant charges

error by the trial court in denying his two motions for

a new trial, the first motion being filed January 12, 1976,

and the second being filed January 24, 1977. Both mo-

tions pere premised on newly discovered evidence.

We do not consider the denial by the trial court of

the January 24, 1977, motion for new trial for the reason

that this motion failed to comply with Criminal Rule

33(B). This rule provides in part that:

“Motions for new trial on account of newly discov-

A51

within the 120-day period. No such order was filed in

the seven days prior to the filing of the motion for new

trial. Consequently, defendant’s second motion was not

properly before the trial court.

Criminal Rule 33(A) (6), relating to grounds for a

new trial, provides in part:

“(A) Grounds. A new trial may be granted on

motion of the defendant for any of the following causes

affecting materially his substantial rights:

“(6) When new evidence material to the defense

is discovered which the defendant could not with rea-

sonable diligence have discovered and produced at the

trial © ©

The granting of a motion for a new trial is necessarily

committed to the wise discretion of the trial court and

a reviewing court cannot reverse that decisiou unless

an abuse of discretion is demonstrated. State v. Williams

(1975), 43 Ohio St. 2d 88; State v. Lopa (1917), 96 Ohio

St. 410.

The following guidelines for granting a motion for

a new trial have been enunciated by the Ohio Supreme

Court:

“To warrant the granting of a motion for a new trial

in a criminal case, based on the ground of newly dis-

covered evidence, it must be shown that the new evidence

[53] (1) discloses a strong probability that it will change

the result if a new trial is granted, (2) has been dis-

covered since the trial, (3) is such as could not in the

exercise of due diligence have been discovered before

the trial, (4) is material to the issues, (5) is not merely

cumulative to former evidence, and (6) does not merely

impeach or contradict the former evidence.” State v.

A52

Petro (1947), 148 Ohio St. 505, and approved in State

v. Lewis (1970), 22 Ohio St. 2d 128.

The record reveals that a closed hearing* was held

by the trial court on January 23, 1976, on the first motion

by defendant for a new trial. Defendant urges on appeal

that a new trial should have been granted so as to include

the testimony of the uncle and the stepfather of the

state’s eyewitness, Timothy Thomas.

At the hearing the testimony by the stepfather of

Timothy Thomas was not damaging to the credibility of

Thomas. The stepfather testified that Thomas never told

him that he was being paid by Daniel Greene; that Thomas

never told him that he had lied; that Thomas had seen

two men the night of the bombing; and that he recog-

nized a car on the night of the bombing. The stepfather

did say that Thomas had told him that he wanted to

work for Daniel Greene.

The uncle of Timothy Thomas testified that Thomas

had told him that he [Thomas] was going to be taken

care of by Daniel Greene and that he [Thomas] per-

formed two favors for Daniel Greene, one of which was

an “out-and-out lie.” The uncle testified that he did

not know whether or not the “out-and-out lie” had any-

thing to do with the testimony of Thomas at trial.

We are not persuaded that the trial court abused

its discretion in denying defendant’s motion for a new

trial for the following two related reasons. First, the

testimony of the uncle of Timothy Thomas would serve

only indirectly to impeach the credibility of Thomas, and

impeachment [54] is typically an inadequate basis for

. The trial court instructed that those people in the closed

hearing not reveal the names of the witnesses.

A53

granting a new trial. Secondly, we find this testimony

no more destructive to credibility of the prosecution wit-

ness than the testimony of David McKinley, who testified

at trial that Thomas related to him a somewhat different

account of the circumstances surrounding the explosion

than Thomas had related at trial. Consequently, the

testimony of the uncle of Thomas does not disclose a

strong probability that his testimony would change the

result as required under the holding in Petro, supra.

We find defendant's seventh assignment of error not

well taken.

Defendant’s eighth assignment of error is that the

trial court erred in not allowing defendant to contact

jurors to obtain statements as to the effect the newly

discovered evidence would have had on their decision.

Defendant cites no authority that authorizes this pro-

cedure.

The standards for granting a new trial on the basis

of newly discovered evidence were set forth in Petro,

supra. These standards do not include a polling of prior

jurors. Such a procedure could impose substantial hard-

ships on jurors. See Local Rule 22(D), Cuyahoga County

Common Pleas.

Consequently, we do not find merit in the eighth

error assigned by defendant.

Accordingly, the judgment of the trial court is af-

firmed.

Judgment affirmed.

Day, C. J., concurs.

Kr, J., concurs in the judgment only.

A54

Krenzier, J., concurring in the judgment only. I

concur in the judgment only. I wish to make some

comments, however, with respect to the seventh assign-

ment of error.

The appellant filed two motions for a new trial.

The first motion was based on newly discovered evidence

and was timely filed on January 12, 1976, within 120

days after the verdict was rendered as required by Crim-

inal Rule 33(B). The second motion, also based on newly

discovered [55] evidence, was filed on January 24, 1977,

nearly 14 months after the trial court’s verdict of No-

vember 28, 1975.

With respect to the second motion, clarification of

the procedural requirements for a motion for new trial

on account of newly discovered evidence made after 120

days following the verdict is warranted.

In general, motions for a new trial based on new

evidence must be filed within 120 days after the verdict

or decision of the trial court. Crim. R. 33(B). Criminal

Rule 33 (B) permit: euch motions to be filed after the

120 day time period but establishes as a prerequisite

for such late filing a court order finding “by clear and

convincing proof that the defendant was unavoidably

prevented from the discovery of the evidence upon which

he must rely.” Although the rule does not precisely

define the function which the court order serves, it effec-

We

leave to file his motion for a new trial.

To obtain the court order containing the finding of

unavoidable prevention, the defendant must apply for

such an order from the court by motion. Criminal Rule

47 and Criminal Rule 33 establish that it is the defen-

dant’s burden to show by clear and convincing proof that

A55

he was unavoidably prevented from discovering the new

evidence within the 120-day time period. The rule is

silent as to the evidentiary material which the defendant

must submit to meet his burden of proof but clearly

more than mere allegation of unavoidable prevention is

required.

Once the court has made the required finding by its

order, Criminal Rule 33(B) requires that the defendant’s

motion for a new trial based on newly discovered evi-

dence be filed within seven days after the order. When

filed no later than seven days after the order, the motion

for a new trial is properly before the trial court and

the provisions of Rule 33 apply to this motion as they

would for any other motion for a new trial made on the

ground of newly discovered evidence.

It should be noted that the defendant may choose to

file his new trial motion together with his motion apply-

ing for the court order finding unavoidable prevention.

[56] In any event, however, a motion for new trial on

account of newly discovered evidence made after the

120-day time period is not properly before the trial court

until the court has entered the requisite order.

The record in this case indicates that on October 27,

1976, eleven months after the jury verdict rendered against

him, the appellant filed a motion in the trial court en-

titled “Application for permission to file affidavits in sup-

port of a motion for a trial.” The application sets forth

the circumstances attendant to the appellant’s discovery

of an available witness in his behalf and certain other

evidence. No affidavits or other material were attached

to the motion.

The motion did not request a court order finding that

he was unavoidably prevented from timely discovering

45

his new evidence and the appellant did not subsequently

apply for such a court order. On January 24, 1977, the

appellant filed his second motion for a new trial with cer-

tain affidavits attached. By its entry of January 25, 1977,

the court granted the motion to file affidavits and denied

the motion for a new trial.

The appellant did not expressly request nor receive

a court order finding unavoidable prevention and the ap-

pellant’s motion for permission to file affidavits cannot be

deemed a substitute for such a request because it did not

include a request for and did not result in the requisite

court order.

Therefore, the appellant’s second motion for a new

trial was not properly before the trial court and could not

be considered on its merits. This being so, this court can-

not in this appeal consider the merits of the appellant’s

second motion for a new trial.

Criminal Rule 33 does not place a time restriction upon

when motions applying for a court order finding unavoid-

able prevention may be made. Therefore, the appellant

is not precluded from making such application by motion

to the trial court at this time, obtaining the required order

and filing his second motion for a new trial anew.

A57

JOURNAL ENTRY OF THE COURT OF APPEALS

FOR CUYAHOGA COUNTY, OHIO

(Dated December 22, 1977)

COURT OF APPEALS OF OHIO

ErcutTu District, County or CUYAHOGA

STATE OF OHIO,

JOURNAL ENTRY

Motion by appellant for reconsideration of ruling as to

the seventh assignment of error overruled.

The defendant-appellant’s seventh assignment of error

was overruled on procedural and not on substantive

grounds. The basis of this decision was that the defendant-

appellant did not comply with the procedural requirements

of Criminal Rule 33(B) and that the motion for a new trial

was not properly before the trial court. Based on this

reasoning, the sufficiency of the affidavit of Ralph D.

Sperli and George Morgan could not be decided by either

the trial court or this court. Thus, whether the evidence

contained in the affidavit warranted a new trial was not

before the court. Inasmuch as there is no time limit pro-

vided for in Criminal Rule 33, the defendant-appellant is

not precluded from complying with its provisions requir-

ing a trial court finding that he was unavoidably pre-

A58

vented from discovering the new evidence within the one

hundred twenty day period. Exc.

Day, C. J.,

KrwaL xx, J.,

Jackson, J., concur

/s/ Lo A. Jackson

Judge

A59

JOURNAL ENTRY OF THE COURT OF

COMMON PLEAS

(Dated January 25, 1977)

CUYAHOGA COUNTY

STATE OF OHIO

JOURNAL ENTRY

Application for permission to file Affidavits in Support

of Motion for New Trial, granted. Motion for New Trial,

overruled. °

/s/ Lioyvp O. Brown

Judge

Se * Nx. R

— ay „

A60

JOURNAL ENTRY OF THE COURT OF

COMMON PLEAS

(Dated January 30, 1977)

STATE OF OHIO

Plaintiff

vs. INDICTMENT

WILLIAM KIRALY Att. Aggr.

Defendant Murder w/cts

JOURNAL ENTRY

Amended Journal Entry to clarify entry of

January 25, 1977.

(Criminal Journal Book 290-page 971)

Upon showing of clear and convincing proof that the

defendant was unavoidably prevented from the discovery

of new evidence, the defendant’s Motion for permission

to file a Motion for a New Trial, (filed October 23, 1977),

is granted.

On the basis of the Affidavits contained in the Motion

for a New Trial, (said Motion being filed within the seven

day period of the granting of permission to file), the

Motion for New Trial is overruled, in that the affidavits do

not present evidence which warrants the granting of a

New Trial.

/s/ Lord O. Baown

Judge

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a