# Petition — Kiraly v. Clark

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 466 U.S. 959

## Text

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.

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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
: i,
1
K
2 1
2
> bees
2
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Ww

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1260%3A1. Public record. Not legal advice.