Record and brief — Smith v. Jago

iSHOW of PROCTCLUINGS AND ONDER UATE: OS202,

CASE NEE S4-1-00°%483 CrH

SHO8)T TITLE Smith. Larry R. DOCKETED: Oot 4 1984

VERSUS Jaga, sup.

Uate Preceedines and Orders

fet 4 1954 Setition for writ of certiorari and motion for leave t»

procecd in forma pauperis filed.

Nov 15 1964 CISTRIBUTED. November So, 1934

Dec 2 1764 Response requested. (Due January 2, 1985 - NONE

RECELVEL)

Dec 24 1924 Order extendine time to file response to petition until

January 16, 19785.

Jan 22 1935 Brief of respondent Jago, Supt. in opposition filed.

fan 24 1925 SEPISTRIBUTED. February 15. 1%

Feb 17 1°55 REDISTRIBUTED. February 22. Yess

Feb 25 19.9 RENISTRIBUTED. Mareh i. 19785

Mar i1 1935 M OTSTRIBUTED. Mareh 15, 1785

Mar 18 19785 Petition DENIED. Dissentina opinion by ustice White

with whem The Chief Justice and Justice Brennan join.

(Ketached opinion.) Justice Powell OUT.

CONTINUE ¢

PROCEEDINGS AND ORDERS DATEs GO320%

CASE NCF $4-1-05543 CFH

SHORT TITLE Smith, tarry R. DOSKETED: Oct 4 ive

VERSUS Jago, Supt.

Date Proceedings and Orders

keener —— ee

Mar 18 1785

Potition DENIED, Dissenting

with whem [The Chief Justice

(letached opinion.) Justice

ee eT sided

opinion by Justice White

and Justice Brennan yon.

Powel) wht.

He oO MEDS SH KSEE KR SH eee KR Ke OK KMS Stee tare ees

ee ee

PETITION

FOR WRIT OF

CERTIORARI

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING, IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED.

_

84-5548

IN TMS SUPRIND COURT OF THE UNITSD ST \.TES

Larry Raymond Smith RECRKIVED

Petitioner,

VS. OCT 4 1984

. oF AR. Jago, et al. Uri uc oF THE CLERK

ty . he a 666 =

MOTTON FOR LE .Vo TO PROCEED IN FORM. PAUPERIS

I Larry Raymond Smith Petitioner, respectfully asks this Honorable

Court for leave to file the attached petition for a writ of certiorari

without prepayment of costs and to proceed in pauperis. Petitioner has

previously been granted leave to so proceed in both the District Court

and the Cowrt of ‘opeals. Petitioner's affidavit in support of this

motion is attached hereto.

‘ +f

/s/ My a

Larry 2. Smith Petitioner

APPIO IT

I Larry 2. Smith being first duly sworn according to law depose

and say that I am the Petitioner-plaintiff in the above entitled

required to prepay fees, costs or give security therefore, I state that

because of my poverty I am unable to pay the costs of said case or to

give security therefore, an that I belive I am entitled to redress

-

Page two (2) No.

I further swear that the responses which I have made to the

—_—_——

——

LL

questions and instructions below relating to my ability to pay the

IN THE SUPREMS COURT OF THE UNITED STATES

costs of oroceeding in this court are true.

l. \re you presently employed? (No) ToRM, 1984

(a) Tf the answer is yes, state the amount of your salary or wages -

per month and give the name and address of your employe-. LARRY RAYMOND SMITH

(b) ff the answer is no, state the date of your employment and the Petitioner,

amount of the salary and wages per month which you received. eae

500 per week. A.%. JANGO et al

Defendant's

2. fave you received witiin the past twelve months any income from a

business, profession or other form of self-employment, or in the

PETITION FOR WRIT OF CORTIORARI FROM THE UNITED

form of rent payments, interest, dividends or other source. (No).

ST:sTES SIXTH CIRCUIT COURT OF APPEALS, CINCINNATI,

(a) If the answer is yes, describe each source of income and stte OHIO

the amount received from each during the past twelve months. << ae ae ae « -—o— <=

3. Do you own any Cash or checking or saving account. (NO)

(a) If the answer is ys, state the totla value of the items owned.

(None)

4. Do you own any real estate, stocks, bonds, notes, automobiles or

¢c a af sh

other valuable property (excluding ordinary househol unishings = tfully teed,

and clothing) (No) ;

(a) If the answer is yes, describe the property and state its { ,

a>proximate value. +’ '

J/3/ . , a

5S. List the persons who are dependent upon you for support and state CBFSy Aapasad Sal ee

y e . . Inst.No. #165-730

your relationship to those persons. (3) Children: geeseethens’ Snetheutien

I understand that a false statement or answer to any question in Post Office 3ox 69

London, Ohio 43140-0069

this affidavit will subject me to penalties for perjury.

é Pla_ntiff-Appellant

/s/ - 4

|

'

Subs¢r ibed as mn to before me this

day bt * 1984.

/s/

—— “Vos ,

IN THE SUPREME COURT OF THe UNITLL STATES

— — _—— Psat 1984

No.

LAR ’?Y RYMCND SMITH

Petitioner,

vs.

A.R. JAGO, et al.

Defendant's

PETITION FOR A WRIT OF CORTIORART

The Petitioner, Larry %. “mith, respectfully prays that a writ

of certiorari issue to review the judgment of the United States Court

of \ peals for the Sixch District entered @n the 19 day of July, 1964.

OPINION 3=LOW

The court of a>peals entered its memorandum decision affirming the

Genial of petitioner "abeas Corpus on the 19 day of July, 1964. A

copy of the memorancum is attached hereto as appendix.

On the 19 day of July, 1984, the court of appeals judgment

affirming the denial of the petitioner's Appeal. And the jurisdiction of

this court is invoked under Title 28 United States Code section 1254(1)

and 42 U.S.C. Section 1984.

CONSTITUTIONAL PROVISIONS INVO! VED UNITED 3X TIS CONSTITUTION

APLNDMEINT'S SIXTH AID FOURTEENTH AMINDMENTS AND PETITIONER DUE

PrOCESS RIGHTS:

INDEX TO DOCUMENT REFERENCE IN APPENDIX

DESCRIPTION OF ITED

RECORD ENTRY NO,

APPENDIX F\GE

(1) whether the lower courts failed to take in to consideration the

following:

That he trial court improperly refused to allow petitioner to call

two alibi witnesses, and take into consideration that petitioner

had 3 sworn affidavits supporting the fact of counsel failure to

comply with the trial courts discovery rule.

Anca the lower court failed to consider that the witness with a criminal

records was allowed to give testimony and the other two witnesses that

did not have criminal records was not allowed to be called as a witness

nor a alibi witnesses.

(2) The lower court failed to consider that the petitioner if left the

courtroom voluntarily, he should have the right to return back to the

courtroom voluntarily.

TABLE OF CiSCS

Blythe Ve State, 47 0.St. 234 *' | PeerrrvrvrirrrrrsvrTrrrrestrrrsire see

Cross v. United States, 325 F.2d 629 (1963 CA BOdccceccceccocecss

Evans v. United States, 284 F.2d 333 (1960 CA 6 Mich.Joc.ccceeees

Illinois v. Allen, 297 US 337, 25 L Ed 2d 353, 90 S.Ct.1057,

reh den 398 U.S. 915, 26 L 2d 2d 80, 90 § Ct DE pechcaccces

Jones v. State, 26 0o.Sst 208 (1875) TOP eP Pee eee eee eee ee eee eee eee

PAGES

18

25

25

21-22-23-:

17, 18-1)-:

Pointer v. Texas, Lewis v. United states, cited in Illinois v. Allen, supra

Peason v. United States, 325 T 2d 625( 19639 CA DC) cccccccccccccs

State v. Abrams, 39 O.St. 2d 53 (1974) cocccccececese:

State v. Delzoppo, 86 O.App. 381, 41 0.0. 496( 1949) wcccccccccce

State ve. Sdwards, 49 O.St 2d 31 (1976) cocccccccccessccesscssesess

State v. Grisafulli, 135 O.St 87, 13 0.0. 440 (1939) ccccccceseees

State v. Mitchell, 47 O.App 2d 61 (197SPrccccseccccccccscsesecces

“saee uv, Jilliams, 19 O.App 2d 234 (1969) .ccccccccccccscsescsccss

TABLE OF STATUTES

Fe eral aules of criminal Procedure Rule Sse cccccecsecccececeoes

Cade Revises Code 8 2907 O2cccccccescecccececocecesecocsooeccese

ohio Rules of friminal Rule 43 eee eee eee eee eee eeneeeeeen eee eeeeeee

Revised St.itutes cs 7283 and 6 7301 €LBDO) ccoccocceceecceseeceeses

25

18-19-20

20

10

16-19-20

11-12-13-.

20

TABLE OF CONTENTS

PAGES

Table of Cases, St tutes and Other Authorities.....ccccccescceces 1,ii

Sttement of Case CO CeCe eee eeeeeererereeeseseeeseeeeeeeeesees 1

OS Games af “ante G06 BOGURcccccccoccccosoccocceccessocccecccs 28

ASSAGNMENE OF EBFTOFccccccccccccccccsesccsecesccccccsesecececsese 7

PASSE AsSAGRMORE OF BEFORE cccccccccccccceccecccccoececece 8

S@CONE ASSAIGNMENE OF ErTOFccccccccccceccccccccccesscecsece 16

CORRS IESAERe cccccccccccesecccccccccccesesccececoeseooececoeoees 27

COFCALIACACION OF SOFVICO. cccccccccccccccccccccececcoceccecocces 28

Addenda

Exhibit “A“ --- Phone receipts attached to response to discovery made

by defendant filed November 12, 1981.

Notice of APBESBec c cooececoeoeooceoososceecessoecoeceeses 31,32,33,34

op-nio and Order.........35, 36,37, 38, 39,40,41,42,43, 84,45, 46,47, 48, 49, 50

tT OF OTHER SORIT

21 ALR Federal, 906, Sufficiency of showing Defendant's

“Voluntary Absence” From [Trial For Purposes Of Crimijal

Procedure Rule 43, Authorizing Continuance Of Trial

Nothwithstanding Such ADSONCE. cece cere reese eeeeeeeeeseeeeses

$5 (a) 21 ALR Fed. Pages 918, 919.ccccececcccceccecccsesesess

§ 5S (b) 21 ALR Ped. Pages 919, B2lecseeeeseeeeeeseesesessssese

250 Jur.3d 88 116 et seq., pages 238 Ct SOqsececcecesceeescees

250 Jure 8 118, Page 243. .ccccecccccsccecesccesesesessseseses

438 U.S. 911, S7 LED 2d 1155, 95 S CO BW4Aeececececcecccceees

20-21

Larry Raymond Smith was charged with rape under § 2907.02 of the

Ohio Revised Code. He was indicted by the Muskingum County Grandi Jury

on October 14, 1981. He was arcaigned in Muskingum County Common Pleas

Court on October 22, 1981. 30th of these dates apoear on the Muskingus

County Common Pleas Clerk of Comrts Criminal Docket.

Trial began November 12, 1981 and concluded November 16, 1961. An

entry filed on jovember 16, 1981 at 9:29 sentenced Mr. Smith to seven

to twenty five years based on the jury verdict finding him guilty.

Mr. Smith filed a Notice of Appeal Pro Se on November 16, 1961.

Mr. Smith was represented at his trial by court-aprointed lawyer,

Robcrt Graham of Graham 4 Graham of Zanesville based upon an affidavit

of Indigency.

Mark Fleagle of Levion, Richardson & Fleagle was appointed to handle

the a.ceal. Mr. Sleagle stepped aside on acception a position with the

Muskingum County Prosecutor's O-fice at which time the current counsel

was apnointed.

The defendant filed a great many motions on his own behalf, including

a Motion in Limine, a Petition for Relief Se ore Juizment, A Request to

the Court to Subpoena Witnes..es, a Petition to dave Another Judge

Assigned, a Motion for Adequate Access ro Law Library and Typing Parapher-

nalia, a Comolaint against the Sheriff, two of his Deputies, and persiding

co son Pleas Jud.e, and a parole officer, a Petition for «rit of Habeas

Corpus, a Petition for a Change of Venue, two Petitions requesting the

Gismissal of his counsel, and several other motions.

iis court-appointed counsel filed Motions for Discovery, responded to

the State's Request for Discovery, and filed a Notice of Alibi and other

motions.

During trial, the defendant personally renewed some of his Motions,

including the Motion That Witnesses 3e Allowed To Testify and the motion

that his couns 1 withdraw and that he be allowed to serve as his own

attorney. Except for the Discover, Motion and the court's allowance that

one of the witnesses could testify, all of the other of defendants motions

were denied against defendant.

During the trial, the defeniant requested and was granted permisdon

to voluntarily remove himself from the proceedings.

ST.TEMSNT OF PACT AND ISSUES

Larry Raymond Smith was ied to « jury under 8 2907.02 of the Chic Revised

Code on a charze of The trial began November 12, 1960, and an entry filed Nover-

ber 16, 1981 at 9:29 aum. sentenced Mr. smith to seven to twenty five years besed on «

jury verdict of guilty. A notice of Appeal was filed by Mr. Smith pro se on Movember 16,

1981,

At the trial the victim testified that someone of the same bulld and height

as tor. omith hed raped her on the evening of Sovember 14, 1960. She stated that she was

sitting in her car in the parking lot of Unio University Zanesville at about 9:30 on the

evenim of the uth, letting her car warm up, when a man wearing 4 ski mks or toboggan

opene the door and forced her to move accross the front seat *o the passerger's side.

be then Grove her car to « secluded spot om a country road, approxim tely two to five

wirutes away. Adams Circle, the street where Defendant and his family lived in an spart-

ment intersects with Adams Lane, the country road, and the sec_uded spot where the

@sailert parwed the car is approximetely 900 feet from theDefentant's apartmert.

(Trp pt. 35-39, 45, W)

Afte: turning the car off, the assailent lit up a ciga ette, smoked a little

of it, and then put it out, He turned on the victim, amt sccording to her testimory, put

a knife te her throat and told her that he would Kill her if she did not have intercourse

with him. He partially undressed her anf forced her to heve oral and vagine] sex. He then

pot out of the car ant teld her to drive away, even telling her she was about to drive

inte « ditch ant irstrected her as to the only route back to Adams Lane. (Tr. pp. 42-45)

The primery evidence that linked Mr. Smith to the crime were two fingerprints

taen ‘rom the victio's -lasses, The victim testified that the rapist he’ removed the

clesses from he> fece and p.eced them in the beck seat and that they had not been removed

from the beck seat until the police searched the car for evidence, The fimgerprinte were

identified at the trial by Louis G. Hupp, « special azent for the Federal Gureeu of

investigation, as those of Mr. “mith, based upon a comparison of Mr. Smith's fingerprints

from an arrest card. (Tr. po. 49-0, 79)

The otate introduced a “hool" cigarette which was discovered in the victim's car

a wek to ten days (iter the incident. -he State produced records from th: ‘uskinguz

County Jail showing tha the Defemdant had smpxed that brant of civarettes prior to the

time the ~-tate informed |.!-ns+ counsel they intemted to imtroduce a “hool” cicerette as

evitence. (Tr. pp. 42, 231)

Testimony from Detective Cergecntteve welker, who was one of the investigating

officers, indicated thct he attempted to question “r. Smith on serous occasions and

he had not been able to discover his where louts,. Detective weliér also testified that

he h 4d searched the (mith apartment and car several times after odtaiging consent from

the Delemdant's wife and that he had removed items of personal property from their apart-

mnt with her consent, He also testified that he went to the spartment almost daily

between the 15th of Lovember, 1980 ami the early part of January, 19@1 ami was unable

te contach the defendant any of the times he was there even though the defendant's car

was always there at the residence through the 2oth of December, 1960.(Tr. pp. 91, 104)

Mr. Smith was arrested in Jacksonville, Florida, on January 28, 1961. lie was held

in -lorida until he was extradited by theitate of Unio in September, 19@!, After being

arraigned in Muskingum County, he spent most of the time until the trial at the volumbus

-orrectional Facility. He was returned to Muskingum County on thelOth of November, 1961

arriving at the Muskingum County Jail et approximately 4:00 P.M. for a trial which

began on Lovember 12, 1981 at 9:00 A.M.

The witnesses testified for the defense, The Defendant ami Richard Drzewlecki.

Mr. DOraewiecki stated that he had been in Florida in Novesber of 1980 and had been

contacted by the defendant concerning a aptercycle he was celling., He stated that he

sold the motorcycle on or avout the '@th of November, 1980 and that he had had conver

sations with the defendant for « period of one or two weeks prior to that time,

(Tre pp. 200)

The Defendant testified, denying his guilt in connection with this matter, lie

stated the he arrived in riorida in October of 1990 and stayed there until he was

transfered back to Unio after being extradited. while being cross-examined, the

Defentant was rewoved from thecourtroom at his own request after explaining to the Judge

that the Juize's decision not to allow two of his witnesses to testify was depriving

nim of a f ir trial. te spent the rest of the trial in the Muskingum County Jail

until he was returned for the reading of the verdict. (Tr. pp. 222, 246)

The iesues in this case that mist be decided by this Court of Appeals are whether

or not the defendant will be held to the technical stantaris of discowry statute ia

callim witnesses who would hove testified to the elibi defense alreaty raiced by the

¢efeni nt.

This Court also must determine whe her or not the manner in which the defendant

was sllowed to leave the courtroom was unconstitutional because the trial ju‘ge placed

conditions upon the defentant@s return.

TH. TAIaL OUR, A@USED ITS DISCRETION I). SLFUSING TO PEWUT DEFEW ANT TO Call T.O

Tio.

THE C.URT EARED WHEN IT PLACED CONDITICNS UPON DEFENDANT'S AIGHT TO RETURN TO THE

SUUKTMAM aPTEL THE DEF ONDANT INDICATED TH.T HE .1LHED TO MB adLOnED TU VOLUNTARILY

, SENT nIMSELF FROM THE TRIAL.

THE TAIAL COURT AMLED ITS DISCRET REFUSING

eter ~ Ay 5 ION IN TO PERMIT DEFENDANT TO CALL

The Defendant was returned to the Muskingum County Jail on the day befere the

trial at approximately 4:00 P.M, according to the Defemdant. The hand-written motion

in limine ‘iled by the defendant on ovember 12 the day of the trial refers te the

defendant being presently incarcerated at the Columbus Correctional Facility.* Shortly

after his return to Zanesville, he met with his defense attorney to discuss the ec+e

for the next day. At that time Mr, Smith informed his attorney that he had three witnesses

he wished to call at the trial. The record Transcript, page 14, indicates that the

attorney for the Defendant orally informed the prosecutor's office that the three

witnesses would be called by the defense amt formally filed discovery on the 12th

of hovember listing the witnesses named,

<ne off the witnesses was permitted to testify, alr, Richard Oreewiecki, This

witness had been incarcerated with the deferdant although the witnese had been never

convicted of any felony. The other two witnesses's testimony wae proffered by the

defense attorney at Transeript, pages 248-249:

refers to a conference morning before the between

defentant smi his abtorney. Several motions filed ty the defendant,

incluting the motion in li ne, were filed on the morning of trial

Mr. Greahe.: Your Honor, if eitner of these isaiviauels

head been permitted to testify their testimony soula neve

oeen nearly igentioel. ‘re. Luar ith is the sother

of the eefenerat Lorry .sytond Seith ene “rs. Luar

mite sould have cern aole to telllthe Coust that ourimg

the months ef Octooer, Noveaver end Deceaver of 1c. she

resivea im Zenesvilie, Ohio in the fes.iy home en on her

telep: one she reweivea telephome calls from her son sho

cal.ed collect from tloriga and that these prome cai.s

more specificelly aie ecewr turing the sonth of S\ovenver.

The testiacny of Yrs. Karen Clapper soula hyve cecn iaentical

to thet im thet Mr. Lerry Saath celled her hore during the

@onths of October, Noweaber and December, cellin. co.iect,

ani those ¢ lls ceing eode from Floriaa. And ith thet that

eoule ve the end of ay proffer as to their testiaony.

Att ched as Exhioit “A" is a copy of the phone records filed

oy tye eefendant on November 12, 1961 at 6:50 A.M. which sould heve

oeen introauce? with the ‘estigony of Ms. S@ith and Ms. -laprer.

All three sitnesces sould have testified te the same fact,

th siioi of the @etendant. Since the sitnesses sho sere not rersitted

to testify would bh ve testified thet the aerengant eas .n the State

of Florida, the triel court auused its aiseretion in refusing to o.loe

their testimony. The trial court gic sliow the testimony of cote silsess

«ho bea ceem incarcerat+a sith Mr. Seithe it is weclear from the record

whether the teo other eitnesses hea ever Seen incercer:tea or hve

any felony recoras. If they dia not, then the State soula not bh ve dees

able te ettack their creaibility by showing the f»ct of incarcerstios

or convictiog.

Tee (hie cases deal with the Gdiseretionsl aiioveance f the

court if permitting @itnesses to testify eho are not listed in discovery

furnished to the other side. “oth of these cases permit the prosecutéosa

to wee witme..es that they have not informea the cefendant toe) would

call. The first case, State vs Edwards, +9 Ohie St. 2a 51 (1976),

ehich eas owerturned by the Supreme Court of the Unitea States, discusses

tne suoject in fart TV eat “9 Ohde St. ¢@ 41. This case sas overturned

oy the U.3. Supreme Court a6 to theaeath pessity imposed oy the trial

court at *$8 US yal, 57 LED 26 L155, 95 Je Cte 24*7e

In the Bae res case, the defenaent compleines thet "re trial

court bed erred in permitting the State eitnesses to testify © em the

name -nasd@re s of the eitness see sot furnishes to the selendent.

be Ohie Supreme Court im secieing 'h* tropesitios ofr error

eas ‘ot well tekken veses its ruling «pom the evidence thet he rrosecgtcr’s

faa ure *@6 ineevertant. Ihe eigsess list fursishea the éefenaent

contaimea the aece ef pate o.cem Meck Seeberry eho vas the pertaer of

-om La Davis, the eiteess sno ees sot listed ene testifiee. The State

sas precluded from callin, Neeberry cue to his heviag @ beert «tteck

the might before triel ana Dewis*s testagony ses igentioal te thet of

another eiteess, the coroner@s inveeti,getor. Tne court hele thet sisce

éetense caunsel dia not sov- for @ continusace thet he saived the right

to opject thet ne aid got neve sufficient tise toe prepere ior cross-

ex-cinetion. "In sesenee of such @ Sofien, the trisl court preperly

conclueed th t cefense counsel Ges preperes t. go forward at tr@t *iBeces

soreower there is lattle reason to seliewe thet eppelleat . +s ill pre-

fp fea @ma surprise@ oy Dewis*s testimony.” ©9 Chie St. 24 “56

ine cose of Jtate v. Nateheil, &? Ohie App <@ O1 Ui 75)?

elise involved @ tealure to sisclose the « se of & Sithe ss. he .ourt

of appeals for c.are County im Sysietus %06 @ refers to ce «sm.atentic .

ene inedwertant feileure to eivulge "he nese of the sitsess ena the fa

“nh t aneeleage of the some of the eitaess eouled, in ao say, hove siced

in the preperation of te Gelraete

‘he @ se involves & trial ena ¢ eviction tcr three counts

eo: utterin ems publishiag © torges inms'rusent. it preceeés fro en

errest of tee .a@ividwels she eer founs ei th checks éreen on v>Triows

eenes im the neces of verious compeaies on eaccovuats se .om,er copes,

¢ Shy & check eriter, and other evidence.

four eitnes ee testified eho sere no: identifies to tne aefense

ana the court hela at “7 Chie App 26 75 cnet it ene clear from *he

recoras thet the prosecutor's inectios ees sot ei..ful eae ac cerely

an ower sight and ot eorst « case of iseptaess.

-he first sitness wos a Ornk teller who had been sudpoenaed ana tne sudpoena

ees a matter of public record in the file in “he clerk's office, srich “he

court founu, put the defendant's ccunsei @n notice as to the li<iihoos that

ene would t stify. ano: rer teiier was listed on an esrlier s.cjocen cu: eas

mot iiste. on th: secre recem: suoroema which conta:nea the other te .her® nase.

The other two witmesse were not listea since the trosec.tion «as

® parently umoware untia the any vetore the tricl tnat the detecti.ee trey

baa S.Dpoenaed to t.st.fy were mot the groper geroers of the police tcrce who

mag ooserved the circums@ences an. should testify. Ine thira witness ..s a

@etective ama th e fourth was a policeman sho took thedefendant's fin ere

“Yinte. “he prosecutor had trought thet other memoers of the rolice force

were the proper rarties to testify.

Froper oojections were made oy defense counsel to ail ot these

*itnesses. In response to the objection to the detective, the counsel for

the Getendgant was askea what he would hcve gone t challenge the witnesses

testin_ny if he had <nown ig aavance that the sitress would ce calles. The

sefense counsel rerlied twice, "I don’t know."

“he court held from this that no showing of prejudice was sede.

Tne Cou.t at +7? Ohio App 24 77 im giving its fationale for up-

nelain, the aamission of these sitnes.es testizony discussed th loc« ot

prejusiciel error to the defenaant and comes to ‘he conclusion that a fair

ea igfertial ac@inistration of justice occured. As part of this, the court

relies upom it geterz nation ‘h=t two of the witn:sses “aa testifiea . an

@or.ier prelicimary hearing so thet the defendsnt was aware of treir testiszony

ema theother two witnesses testified to matters of * proceiural natire.

At 47 Ohio App 2a 76 the court d’aws an analysis which woula

erply to the present case where it hoids:

"(I) it is difficult to conceive of «ny additonal = tter #hich

cefegdant might heave developed if he had actuslly been

notifiea by the prosecutor as to their names and adiresseses.

It is thus clear that aefense counsei knew all aoout the

pertinent parts of the State's case well in advance of the trial.”

-i tae pres-nt ca.e, the tote » 8 on notice tnat it would have to

FeSpona to “mM a.l0i sefense. since tne witness sac wus a.lowea to testify

eet.ii@. as tp "me alibi a.iense, ana since the other two sitnesa woula

huwe te. tifles as to the alioi aef nse, it is clear that the pro. cutor

An€« M@ wOu.le have to convince a jury that th a.i*i sefeons wea. not velia.

2 He8 O-FZER WOu..g ave been ,laced on the prosecu‘or faa tne other two wite

nes es ceemp allowed to testify.

-WO fore cases -:ere the ;rosccutor sas al.owea to introguce witnesses

mot listes unger the feseral rule of criminal Frocecure are cites -6 aduitional

@ativority :m the “iterell e-se, suprae In the Mitcnell case, the Co.rt of

Appeals sets up a two prong test to setermine .: tne s@lenuant eas pre juguces

sy ‘he action cf the trial ccurt. In or.er to show prejudice, the aefenaant

woula nave ceen acle to show that he could have utilized the knowlease that a

sites woul@ testify to reveal ¢ weakness in the State's case or to core

eifectively present a credible aetense eetablishing his innocense, or coth,

47 Chio Ape 24 794

ihe Court states thet the purrose of Giscovery ,troceaure is to prevent

Ssurprase sna not to prevent the introduction of ewidence th t the other side

coula heve ciscovered. The Court holus thet it so.ld have been unfeir to the

Jtote to refuse to aduit the ovidence and therefusal to aamit the evisence

WouC-.a not hove aided the merits of *he defendant's defense,

in the present case defendant sought to iatroauce evidence reletive to a

S.0stansive defence properly raised, alici. Attached to the aissovery witn the

naces of the witnesses were copies of the Ohio Bell Telephone lomg distance call

P@nisSter. ine two witnecses who were not permitted to testify would have testified

to the sare suoject a» the witness who dia testify.The State would hevve not

been reyuired to defend e,ainst any additional defense since the alioi issue

* @ already before the Court. The State canpot allege surprise. The State sould

nave ceen requires to challenge the alioi defense whether one, three or ten

*itnmesses had testified. Since tne jury mi_ht rave celievea th: witnesses as

to alivi, the only aifference is that the State gwi,ht have hau a more difficult

t.ge proving _vilt oOeyona a reasonacle doubt anu might not have been aole to

ccavance a jury to convict the geteniant. Since the defenuant is entitiea to

have tne State trove «u.ilt beyond a reasonaole aouvt and since *:s witnesses ere

reaay and willing to ‘estify, as indicated in the recora, hw eas cenied the

fi-nt to make a fuil defense.

To follow the analysis of tne Court im Mitchell, supra, the two sron,ea

test that applied to the detendant in thet case also aprlies in this case. The

evi.ence would have adaed to the showing tuat there was a weakness in theState's

case and wonla have guch more effeetively presentea a creaible defense, especi-1l)

aiven the coilateral attack @ de oy the prosecution on tne creaidility of the

witness who gis testify. It is not clear trom the recora ehether or ct the

other two witnesses hod a criminal record. if they cid not have a cricinal

record or if they had never 3 then the attack on the credibility

would have teen ligited. Since the aefendent eas not in Muskingum -ounty until

srortly beiore trial, the court snoulu bheve tacen that fact into consideratuon

in cexing this aecision as to the techmicel requiremen:s of aiscoverye It is

aprarent from the record tht “re Grshem get witr hie client the day vefore trial

when the witnesses were disclosed t- Mr. “orenam. T his ‘s not case wnere the

defeninet is free on dona or even is incarcerated in a local juil. These f ctors

snould mitigate th. strict compliance with tne reles od aiscovery.

The fact that the attorney forthe detenunet aid not ask for a continuance

in this matter sroula not allow this court te fail to sddress the issue of the

fairness of the triel. The Court may «now from ite experience that the scheduling

of criminsl cases is done with an eye towards a spe.:y <ricl statutes When

jurors are calied, courts are sore reluctané to g ant continuances since they

greatly inconvience the jurors.

This Court of Appeals should also take judicial notice that the gunner

in which cases are schedulea for trial in Muskingum ‘ounty differs from the way

they Might be sche.ulea i the gore populatea counties. Im !usaingum County,

it is uncommog for nore than ome jury triel to proceed at one time. Jurors are

cellea for the particular case that is scheduled for trial and are not chosen

from a larger panel tht is reguleriy celled for an e.tended periou of jury

tutye Ones motice of trial are meileu to them, the courts are reluctane to

gfemt continuances. Oner the jurors are pre.ent in the courtrooa, the court is

even mote reluctant to grant @ cont.nuances

S D ASSIGNMENT OF Exr

2h COURT ERAED «HE MW IT FLACED CONDITIONS UFON THE DEF DANT*S 2IGHT

TO aeTURN TO TH. COUATHOOM AFTER THE DEFE“DANT INDICATED Ji. T HE «ISHED

TORE AL.OwED 10 VOLUNTA-ILY A®SENT HIMSELF FROM THE TRIAL.

At tramseript, pa,es 242-266, Detensent volunterily asks to recove hirself

from the courtroom aue to the court’s refusal to @..iow8 two of his sitnesses to

testify, see tirst Ass‘,nment of Error.

At transcript, p ge 245, lines 2) ena 21, theCourt announces a recess.

at transcript, page 244, a discussion is recoriea oetween the attorneys, the

-M@ge, ona Defendant out of hearing of the jury. It appears from the record,

Tremscript, page 251, lines 21 and 22, that the jury was returned to the courtroom

at 5:55. From this, counsel for Appeliant draws the conclusion that tie aiscussion

referrea tc it page 244 et. Sece occured auring recess.

At transcript, page 244 line s 5 through 7, the Court asks the Defendant if

ne wishes to witharaw from the case to which the aefendant adas,"yes." At transerirpt

puge <46, lines 1 through 19, the Court instructs the Defengant es to the cojse,uences

of nis oein, permitted to remove himself from the courtroom. At lines il through 19,

the Court says the fol.owing:

I wight roint out oefore you leave for the recora thet

if you should sesire to return to the courtroom at any tise

with the understeniino, that you woule cooperate with your

counsel and refrsin from any further outoursts, then the

Court would aiscuss that with you at that tise and I woula

provauly wring you oacke Do you understand what i's ey

(Emphasis adced

At Transcript, page 252, lines 1 through 7, the Court exrleins to the jury

that the Defenaant has oeen removea from the courtroom st his own re ,uest:

Memoers of the jury, I would like to infor@ you *he tria.

will proceed at this tise out I think in orger 60 thst you

understand the situation, the defendant ‘r.smith has

voluntarily requested that he not oe prisent for the

remainder of the trial and the Cu.rt has grantea nis re.uest.

Counsel for Appeliant mainteins that the court's a nner of explaining tne

Situation to the defend nt was error since it may have given the iapression to tne

aefensant trat he would not be al.iov.ed to return unless the court affirmatively hela

that he would comply with certain conditions. In addition, the court never made 4

finding thet Mr. °mith was not cooperating with nis attorney or thet he was engaged

in fur.ter outberste. The record does reflect a conversation vetween the Defendant

and the jua,e cut htere is no finding in the record that there were “outbursts”.

Further, the disagreements oetween counsel for th defemdant ena the defencent do

not aprear in the record to oe cause for the Court to impose conditions upos the

Defencent's return, aosent » finaing thet the defendant should oe regoved as opposed

to # tinging that the Def+naant could volunterily remove himself.

Various caces in Ohio deal witn the pr-+sence ot the Defendant in the courtroce

Guring the tr-.ale

the ¢ se of Jomes v. state, 29 Ce St. 208 (1875) holde that it is error for

the court to instruct the ury in the aosence of the accuse., ehile th: accuses is

in j ail waser the order of the courte

Th ease of _lythe v. State, “7 0.Ste 234 (1690) holds that the kevised

Stetutes 67.0 ana 87501 aces not require the actusl presence of tre accused, in

Elythe, a jury view wa. conducted ana the cGef.ndant nea the orporiunity to attend

ana ceclinged and the court hela that the rrivélge of attending was sufiicient and

thet the judge @ as not douad to com-el hig to accompany the jury.

Ine ease of State v.irisafulli, '55 O.Ste 57, 135 2.0. 4*0 (1959) holds that

it is a rig:t and privilege of a defendant t. be present shen a -ury instruction is

given. The Court hold@e thet the rule progulgstra in Jones v. State supra, is still

valic sau a:prover and foliows tne .ones cases At 15 0.0. 442, th-Court holas thet the

iscue decided does not involve voluntary aosemce from the trial cy ome sno is nor

i@prisonea or unser restrainte

Ti. ease of State v. Avrams, 59 0.St. 2a 53 (ly?*) holds in Syllebdus 1 that,

“A eefenaant in « ¢C:iginel case has a right to oe present when, frursu.ant to a reyuest

from the jury during its celiber tions, the judge communicates wit the jury re-

£3raia, his sastructions."

Despate <nis expansive statement upholdin, the Jones ong Grisafulii cases,

the suprece ‘ourt of Ohio holds thet the failure of the @efenaant to ce present sehen

the juage was somea oy the jury anto their deliverations room is not prejusicial

errore .hree cissents are included as part of he cose which argue thst the Ohio lias

as tn t such @ situstion is automatically prejudicial to the defenaant.

The @ jority di.tinguishes the Jones ana Grisafuili cases om the basis tht

the juu e's omiy comtact sath the jurors eee to ex:lain to them thet he woula not

aive thec any turtner imetructions out thet htey soula heve to reread his ori,ginel

cherge on thes.oject, accorain, to @m afiicavit filed oy the judge in *he Vourt of

Appeals ana referrea to at 59 Teste <@ 556

Sase a utom this relatively inmocous contect, according to the @ jority,

thye hola that the error is not prejusiviale

Lads case ca. ce Gistim,uishes from the present case since @ Si,nificant

portaon of the trial proceede. without the aefenaant’s presence. In he present gase,

th- Defenanat comcievaodly could heve change his @ind aurin, the recess sad «igh heve

gecigea to return to the courtroom for the continuation of the trial haa the juage'’s

statement to he detenaent not rl°cea certsin conditions upon the Defendant's return.

In the sof gs case, -he three dissents «rue thet .ne court Shkoule mor

in,sire *S to the question of pre waice vcecs.se the error is pres... -tively «rejusicial

ane trerefore presurptively reversiole error.

-he ™ lority im the ctate v. Abrems case does not overturn tte Jones case

*®: ich Was arrroved »~mufollowea is Grisefulli. The =» joBity insteaa exarines the

comauct of the trial judge te ascertain whether or mot the cco duct is s.fficient to

lead to rrejudice. The “ourt 5-sces its holdinss on the fact th t the agditi nel

instructions rejueste: sere not given.

qr. the ACE ots ca-e, Supra, the sajor:ty states that the Jone case, supra

1S ‘FRrowea im the Grisatulii case, surra.

in Jomesv. State at 26 0.st. 219, ghe court holds that error will ce preeures

elem @. instruction is given to he jury out of the nearing of the defencent.

it is the right of the ;la:mtiff in error to be present

at esch sna every instruction iben to the J ry as to the

low of the case. This ri.ht was denies to his oy resson of

mis inprisonment uncer the order of the court; end with-

Out inguiry as to the correction of the instruction so

given if S25 aosences it #11) ce presumec thet he eas

pielusicea thereoy.

‘or wa. the irre..lefity curea oy the pre ence of his

counsel at the time the aaditionel instruction sas g.ver,

aaa cis fsilure to make oojections. ine rit,h of the

accuses to ce present on the trial of such case can not oe

@sived oy counsel. (Eoph sis added)

vince the Chio Suprese Court aoes net overrule the case of “opes v. State

Sut serely distinguishes the fact situation in the Abrams cae, it is fres.sed

ty Atrellamt that the nholsang quoted atowe is still walia as the Ohio Supreme

court's statement on theadsence of the cerendant from the courtrooms

he ceses deal wit.. the savality of em attorney to waive nis client's Pi_kt

to oe prese.t. These cases are State v. Delzo:ro, CO >. Arp. *@1, 4i 0.0. 476 (1969)

ehere the court held tnt the counsel could not waive the detenasnt's pr: sence ena

State v. siliioms, 19 O.App 2a 234 (1969) wnere the court held at 19 C.Agr 2a 243

that the celengant's a tormey coule not waivedefendent*s right to be present.

in the art.cle om Criginal Law at 25 0. Jre Sd OBL16 et sey. pare 255 et seu.

there is a discussion of the requirecen: of th presemce of the accused. The article

States thet unuer the confron$ation clause of the United States constitution that

the accuses is ,varanteea the ritgh to be present in the courtroom in every stage

of the trial. The article aise ciscusses the waiver or loss of this right and at

25 Ce Jure 24 115, page 243, quoted from the United States Supreme Court case,

-2.inois ve Allen, 599 US 337, 25 L. Ba 2a 5353, 90 S Ct. 1057 as authority for the

Staterent th. t the defencant can lose his right to be present if he has beea removed

ave to his .isruptive beh vior.

Tae mite: Stetes cuprese Court im the ease of Lisimois ¥. Aliew 97 US 55°

, & Ba 26 5535, 0 S Ct 1.357, Feh cen 59© US Pl5,_ 26 L Ba 26 60, 90 S Ce 1688(1470)

igvolwes 4 cese ehere the cricl J-@ge had the vef-< ascent phySiceliy regowes free the

CaPtrOOBe

The Sajority opinion selivereé ty Mr. Justice “Back «+ 59? US 358 holds thet

ts <aeth A@enascent to th Unites States Coastitutica ehich (roviaes thet the

secuses shall emjoy th Fight te oe confroate. SL th witnesses she wil) testafy

*_S4NSt Aim Lae Deon @ 20 SC.baia, “ios the <trts throu.ns tee Fourte: ath Amenucent

“8-@F (Ne cases of Foanter vs lexss ond wQSiS ¥. Unites States, ehich ere cites is

the Al.en cose.

TR issue Before the Court is uhether sa accuses cen cleie the cenifit of

SHAS oOMSTitu domed raght to remain in the courtrocs whale “he enge_es in speech

®8 7 COMG@uct Shick iS So Boisy, disorcerily, ©n@ Gisruptive thet it is er@eesing.y

sai ficust oF enobly ipo i601 « to carry o@ the trisi.” 597 LS 538.

‘he facts im the Allen cose inuicete thet the Getenient threatenes tne jeage's

site, three tee file of bis sttocmey on the floor, er.wed in an acer sive ena dis-

ruptive Genner, threatenes that there eas te be no trial due te his contrel of *-«

*weats, ema ;rotested when fis attorney Seee @ fotioe te exc.use witnesses frou

the courtroce.

Detenarnt was returned to tne courtrocs Guring various parte of tre wtete's

cece OF FuPpese Of igentificetion ena usea vile "ME SOLSiVe 1 nguegee The trial

~S4et— @VOR Siter all of these cutourst> still esde it clesr to the eelendent trat

“@ CCea@ reture to tre courtroom if he ®reea to teheve,

The .mited Stat«s Supreme Court roles at ts? us S53 thet the detencent con

-O5@ Sie Fant to O@ pre.ent af, efter seia, eernec, he Com itues aisr.ptive dehevior

of s.th @ Geaner that the trial camnet ce cerried Of @ith his is the courtroce. swt,

th €O«.t 2150 bo.GS treat be cas Fecle se the Tight to Femgein in the ccu:troom it he

25 ©2..18, te beh wre.

“h@lOuFt Sug.euts thet there ere three eeys to neadle an otstrererous

SeteSsent cy Singiag hie, citing hae for Contea>t, remeviag hie free the courtroom,

ihe Court holes st "97 US 57:

It ds mot lessent te held th t the restomeect Allen «as

properly Semisches free the court fer « pert of has cee

trigis.. Sut, if cur courts ere te reeaia ehat the

Fo.n@eTs inteneec, the citedels of justice, their

PPOCeeGI NES COBMOT ene Bust not be iafecte. sith the

SOft Of SOUFTileus, Sdusive 1 aguage ond comuuct

Poreces Sereore th L.iiinois trael court in this cese.

*esed upo. “fot. Go owerwheleing os these, the supre e “ft eal.ceed the

t. a8. Court © peotees in the ebeence of «he se lepsant.

la the preseat case, “sere is BOthaag im the recers te shee thet the defercent

comportea cige.ef im omy somner ehich would fall unger ...0 stamasras set im Allen.

ven tie Siightest Ligitetion to Bis right to retara to the trial soule necessarily

e@ L:@ite@ to has cona.et. Simee ao finaing of his conaguct eas foue oy the triel

co.rt ema since there is ne holding Oy the tri 1 juage thet his cehevior eas co

LOLS), sisordgerly, anagisruptive th t it -a8 emc@esiagly Gifticeult or enolly imposs-

joie to cerry om the trial, then the congitions put om the deferdants getura cere

pre legicial o6 @ Setter of sometitutional Fri, ht.

i. the Alien case, the trial juage eilowea the aef ndent te ce returnea te

tre courtroom on Severs. ceocessions tor iventilication end thea te ce pre ent through

the regeineer of the tr.s., pramcip lily his en defense. Te trial court imitisily

S.S@ SFougnt the Gerencont Seek Onte the courtroos aiter his first remove... A deten-

sent she sas #8 Gieruptive @= "hr. celeneert im Alies is net the detendent portray: «

+m the record ig the pierent cae. ‘he Pecera does not show ‘het the tris. juage is

“he pre ent © S@ Speke te the Getenaent severel times at lent in « courtrece

one? co. te the requirements of the 1 ©, Gut thie trial jucye in the present case

226 net hold that Se ce'enuent stouls ce resowed free the c.urtroom ior .ace , Se

cerely ailowead the de enagent to recove fieseit from th @ courtroo.

hae Jowrt ef Appeals cannot ignore the effect tot the rerove) of a sefenacent

or the wolent ry eosence of « defendent . © cricinel felony tric hes «; © &@ lute

ler pe th & as ehy the Suprese Court of the Unated Stetes refers to the feet tet

it 19 not pleasent tonowe te hola the camishment of @ defenirnt from 4is own trisi,

even if it is omiy for « pert ef his own triel.

bule *53 of the Ohio bules of Cricinal Procedure proviues thet « *iiel cay

troeees tespite the woluntery stsence of « setengent. Fule +5 of the Federai rules

of ‘riminal Preceeure alee provide that the voluntory steence of toe defendant sheil

met prevent the comtia. ‘tice of the triale

Neither of t!+ r.les eadresses the iss.e in the present case shich is once

tee selena at Res volumterily eosentes © a@self tron the ¢..rtreee ehether of sot

the court cay pl ce comaitions epom his fetura. “ecause the rule in Chie is set

specific & te this cecurence, the cases referea te s ove ore Dinuing upon this

lowrt of appeels since tcey address “heaselves to the consti tutioge, rignt ‘oat ®

setencent hes to oe pre eat at hie triele

An annotation et 22 AL# Feceral 906, Sufficiency @ f Scowim, Detemanat's

"Volunt.ry Absence” trom Trialfer Process of Srivinead Proceaure «ule +5 Autnoris@ag

ceataeecnee ef Trisi Noteithstending Sven Abeence, oy b.5. Soreman, JTeg Je + Ot

pege lb, et seq. aiscusses wobunteary sdsence oy the cefendent.

at © 5 (a) at 2 1 AL. Ped, 979, Ue article discusses two cases where the defentant

was absent from the courtroom while in custedy of the United States Marshall. The cases

are Dyans ¥. (nited tates, 284 F, 24 393 (1960) CA 6 Mich) and Crose v, United <tates,

325 F 2a 629 (1965, CA BC). In both of these cases the Court of Appeals held thet the

defencant had rot voluntargly absented himself from the trial given the manner in mich

he was detained and contrasted the removal with the situation where the defeniant

remains iree to come ind go as he chooses within the courtroom,

in the Gross case, the court required that before there was an intelligent and

competent waiver th@ the defen nt shoa@ld be brought before the court ant advised

of his constitutiogal réghts amt that the nature of his waiver be examined by the trial

uyee

Im the came article ot 8 5(b) at 2! ALR Ped, 919%-92!, are eases tht discuss the

situation where the defemant voluntarily asks to be removed {rem the courtro. . In

the case of learson v. mites States, 325 F.2d 625 (1963, CA DC), the defendant asked

te be rem ed from the courtroam, was riven an opportunity to change his mind, and informed

of the mture of his right to de present antof the possible atvantages to hing

The Gross case supra, suggests that the defend: nt sign a waiter or at least mke an

on record statemen® in open cjurt. The Cpogg case can be distinguished as to this fsct

when one examins wat actually was said ir the present case,

In the precent case, the defendant's response that he wished to be removed froe

the courtsoom was followed ly the judge imposing conditions upon his return, The question

of whether the tefendant would he ve asked tobe rempved nd he known of the conditions

is a question wich cannot be answered by counse] for appellant,

Since there is nothing in the recerts to show that the court held that the defendant's

behavior was suffictent unter the t st of [)idmois ve Allen, supra, then the defeniant's

removal from the courtroom entitles the defemtant te return to the courtroom whenever he

decices to, the placing of condi@ions upon that return was prejudicia) error, Since the

delemiant was in custedy and was incarcerete ¢ in the County Jail, hie return would me

recuire’ « request by the defemiant te the sheriff or deputy sheriff that he be allowed

ee es SL as SE

to returr te the courtroom, The defendant may have been of the opinion after hearin the

_udge place comfitions upon his return thet he could mot return, so he gay heve dedided

not te meee thet request, «hen al] these factors are considered, it is clear that defen'ant's

ab. ence was initielly voluntary but thet it was enforced by the court making the absence

involuntery ant meaning it p ejudieial te the rights of the defendant,

@ ited Ads

The Acsignment of Error in this cace relates to decisions of the trie] judge which

Limited the defentant's ability to present « vigorous defense ant whicn may heave caused

the defendantte remain in the wesingum -ounty Jail during the portion of te trial after

he voluntarily removed hirwell. The conditions placed upon his return by the utge may

have convinced him thet it would sot be linely that the judge would allow his ret.rm ané

ne may bh. ve foregone returning to the courtroom,

Seth of the Aesignment of Brrer raised by the Appeller® relete to the ability of ‘he

defleniunt to heve @ (air trial is the comnerstone of our crimine) justice system,

le the adeense of « fair trial, the ¢efendant's conviction cust be overturned,

This Court of Appeals should taxe judicial notice thet when the trial judge hes

elreacy denied the defentant's lotion te Al.ow witnesses to Test&ly om the witnesses

ce present and willims to testify, just how likely would he be to grant 4 continuance

£0 these same witnesses could testify alter proper notice to theitate, especially wen

he would then uve te send the jury home?

i hereby certify that « copy of the foreroing brief for defentant~eppel lant

hae Deen served upon the Attorney General, State Office Tower 26th Floor, 30 Fest

sread treet, Columbus, Unie 43215 by regular U.S. “ail on this _ aay of

1983.

retiticner

We Civil setion Mo, C2381

hee _a As ls

hespontert,

—_ Wi tideh 2D Obie

vs) oner, & State prisoner, brings thid eetion for « writ of hebeas corcus

woot Se prowletons of 28 VU... €2254, This astter is before the Court on the

petition, Peturn ef writ, transerigt of p soceedinys in [hate ye. Larry laymen’ ith,

Oo t=) \Nuemingwm uty. CoP. Che lov, 1981), amt the briefs and emibite of the parties,

(etitioner was invieted wy the January, 1961 term Muskingws County, Chic Grant “ury

“oF one count of rape in vieletion of 62907,02, Chic Revised Code. Petitioner was tried

+) ® Jary stich fount bin guilty as charged, On Nowenber 16, 1901 petitéener was sentenced

te @ tere of seven (7) to twenty-five (25) years imprisonment.

“etitioner directly .ppealed Bis conviction te the Court of ppeale for ‘uskingwm

-cunby, Die alleging the following assignments of error:

‘+ The trial court aleset ite disctetion in refusing to

permit the defemiant te call two witnesse:.

2. The court erred when it placed comfition: upon the

delentint's rignt to return te

aftiruet the jwigaent of the trial court,

-nerea. ler, petitioner -ougt review in the Lupreme Court of Onte. On Fetruary 2,

17@), th t Court owerru.ct petition-r's ation for leave to sppeak ant gue sponte

dicrisse* ume appeal for want of « Substantial constitutional question,

betittoner alleges that he is in custety of resconmtent in violation of the

vonetituton of the -nited .tetes in that:

1, Jhe trie. court stuced ite @iseretion in refusing to permit

toe Gefentat te Ga.. 1 witor ores.

2. The court erred when it placet confitions upon the defentant’s

right te retern to the otw troos siter the tefentart iaticstet

on t he wishe to be alle «1 to voluntarily scent biweelf free

th triéi.

a, The ewitence was unlewfully rewevet aw [e0ricatet.

Petitioner*s Hirt grout for relief ha@ never been presentet te the _nie Courts.

. @tete prisoner te requiret te exteert al] evallece state Sutictal) reaeties cefere he

<ay sees redpess oy way of petition for fet rel heteas corms. [icat y. Lemmr, #4 -+ +

27), 275 (1971), Lf hie constitutional, cleiee Reve sot Seen fairly preserte: & oy

procetere svails@le in tre state courts, nis claims ‘eve wt Seer ext austet. 28 USL

® 22% (5), (ee ad

Petitioner*s factual ablegetions comcerning his Wirt cmunt or relief ere as

fol ows:

The primary evidence tt Lireed *'e ‘efewtart ‘o “'* oie

were the tao fircerprinte tasen [roe tte victim slaeres. "e

{iL gerpmcte were rewevet [roe te ploeses, a We glaeces

war (ele) retermed tee (eke, victis tre ret ‘a.

as ewitereed ty the trial record, it is petitioner’s position thet nis fingerorirte

mich were sl.egetly teen (poe (he wictia’s glasses, wore wet tavern free err «cee

ot all. hater, cetitioner aeserts thet the fingerprints cere reapvet [ree his persona.

property, «ich he claims were illegal.y rempvet from sis home by the sheriff's Departannt.

Cater Obie law, constitw@tonral issues cannot te conpitered in pust-wonviction

proceetins unter © 2953.2! of the Keviced Code were they have alreaty teen oF could

nawe been [ally litigstet, «ither turing trial or ¢irect eppeal. Leener ¥, Eitenpus,

59% Fo 24 581, 586 (etm Car. 1979); Eeate we Fores, © Chto St. 36 36, 99 (1982).

retitioner was aware of is evidentiary claim with respect to the fingerprints at the

“ime of the trial. This is evidenced by the fact that he filed a motion to suprress

‘het evidence, which was overruled by the trial court, Thus, although he had an

oppertunity to fully litigate the issues both at trial ami on direct appeal, petitioner

failed to pursue the matter. The claim is therefore not cognizable in a post-conviction

preeeeding unter §2953.21 of the Revised Code. Id.

It is not disputed by respondent that petitioner is preclude: from raising the

«.i@n in any other state court proceedings. Accordingly, the Court concludes that

petitioner has exhausted all available state renedtes with respect to his third ground

for relief as required by 28 U.S.C. 62254 (b),(¢).

The facts of the case, as presented at trial, are as follows:

tn the evening of November 14, C95D Seuss Ghewy wan cttendins @ eoeemtins chase

@ \Mio University in Zanesville. After the elass was dismissed at 9:00 p.m., she

reweined in thebuilding to discuss some questions with her professor, At approximately

‘sE, she left the s@ilding am! proceeded to her car, which was parked in ar adjacent

0s Ae she sat in her car warming the motor up, 4 man approached from behind. He opened

to ‘civer's door and directed Ms, Merry to move over to the passenger's side of the cer.

She man, who was wearing a ski mask, drove the car to Adams Circle, ‘here he pulled

©.f the road into a small turnoff, He stopped the car some ten to twenty yards ‘rom the

etmeet amt sat smoxing a cigarette. When “s, Merry attempted to leave the car the nan

pabeed a knife at her throat and tul# her that he would kill her if she did not have

eemal relations with nim. as the man undressed Ms.Merry, he removed her glasses and

re them in the back seat of the car, The man then semally assaulted Ms. Merry and

raped her, He subsequently left the car, directing Ms. Merry how to drive away from the

ares so as to avoid a ditch. within one-half hour of the assault, the rape was reported

te Me police.

Throughgut their investigation, the police treated petitioner as a .uspect. He

Lived within 800 yards of Adams Circle, the site of the assault. He was known by the

nelice to own a ski tusk of the kind described oy Ms, Merry, further, his height, weirht,

an@ bot) ocuild were similar te the description Ms, Merry gave of her assailant.

Fetitioner's name was sent, alorg with lifts of the fingerprints obtained from

“s. lerry's glasses, to the §.8.I. in Washington, D.C. There the fingerprints were

pesitivel) identified as those of the petitioner, He was subsequently arr sted in

cksonvilie, tlorida,.

at trian, the states case consisted primarily of Ms. Merry's testimony, along with

otner Mysical evidence connecting petitioner to thelcrim: the close proximity of his

home to the ccene of the r pe, the fact th®t the petitioner smoked the same brani of

cigarettes which was later fount in I's. Nerry's car, and the identification of his

fingerprints which were found on Ms. Merry's glasses,

retitioner's alibi deiense was that he was in Florida from the end of September

19eO until his arrest there in January, 19@1, Richard Drzewlecki testified that he met

petitioner in “acxconville, Florida during lete October, 1980. lie saw him at least 3

times a ween t..rouch the ¢d te od the rope. He had no specific mcollection of petitioner's

whereabouts on Lovemoer 14, 1980. Un cross-examination, Mr. Dreewlecki afnitted that

ne amd petitioner were incarcerated together while petitionwr was awaiting extradition

from riorida to Uhic on the rape charge.

II

Petitioner's first claim is t-at the trial court abused its di: cretion in refusing

to permit him to call two witnesses at tric. ‘epriving him of his right to fair trial

amd te fully develope sis defense,

after providing full. divcovery, the state requested reciprocal discovery from the

defense pursuant to Mule '6 (c) of the Chico .ules of Criminal Pr + dure, The trial court

ordered the <elense to provide égjl discovery by entry filed October 30, 1981, At approx-

imtely 4:00 pom. on the day prior to the trial, petitioner provided the state with the

the mie of \ichard Drzewlecki, an alibi witness,

in the morning of trial, the state was aivised of the names of two additicnal alibi

witnesses, aren vlapper and Lura cmith, [etitioner's counsel proffered that Lura Smith,

petition rts mother, ant .aren Clapper, his sister, would lve testified that curing

Letober and hovemb)r, 1980 they each received collect telephone ¢ lls from petitioner

in Florida, Petitioner also offered a telephone record or records supporting this

pooffered testinony.

Tetitioner's attorney informed the trial court that petition r had withheld these

‘aS .rom him until the iate hours of the day preceeding trial. The trial court per~

sitted ore Orzewlecki to testify, but precluded petitioner form ealling “'s. Clapper or

“es omith, -ne Ltate court of ajpeals held that this ruling was properly within the

S-ope of the tei:] courts discretion, Lecpondent submits that the trial ccurt's ruling

with regard to the requirererts of .ule 16 of the Ohio Mules of Criminal “rece-ure as

eaclusively within the provisions of the state judiciary,

-etitioner conterds inst he shoul ( "ve been held to the technical requiremer.ts

of the discovery rules witi rege: to notifying the state of hia alibi witresses, Me

inciceted thet he wae inc reerctet in Columbus until the day preceeding the trial, which

was neld in waresvil-e. He asserts that, for this reason, he hid insufficient oprertunity

to riice the « tter with counsel. however, petitiogsr's attorney states or the record

at trial tact ne hac discussed the case with his client on a number of occasions, and

tat ne hed repeatedly asked for the names of «itnesses who could establish « defense,

cetitioner refused to cooperate! wit. hin, Petitioner did not mention his mother ant

sister tc defense counsel until] the day before trial.

Fetition r Durther reesons that by providing the state with the names of Mr. Drzew

iecri, he placed the stete on notice that it would be reqired to resrom to an olibi

cefense.

4n a habeas corpus preceeding, a United States District Ciurt does not exercise

tirect review over state court decisions, Rather, the scope of féderal he beas review

ie conmined to errors which are of constitution] dimension, Sajl v. arn, 536 F. 2d 127,125

(cnt Cir. 1976). Jenerally, state rulings on the admission or exclusion of evidence do

mot raise constitution 1 issue. Burke vs Deeley, 512 F, 2d 221,223 (6th Cir, 1975),

cert. denied, 423 U.S. 937 (1975); Reese ve valdweld, 410 F, 24 1125, 1126(éth Cir.1969) ;

ieicel ve Puchroe, 258 *. <4 338, 340 (6th Cir, 1966), cert. denied, 385 US. 962( 1966).

However, a trisl court evidentiary ruling aey rencer the trial so fundamentally urfeir

as to constitute « derial of federal rights. Logan ve Marshaj), 680 F. 2d 1121, 1123

(oth Cir. 1962); Giljinan vs | » SUV PF, 2d 1982, 1191-2 (10th Cir, 1977);

Sel) y._orn supra, 536 Fe 2d at 125,

che right to present witnesses in one's behelf is a fundamerte] right made applicable

te the states by the due process clause of the Fourteenth Amendment. Chagbers v,

Mississippi, 410 U.S. 294 (1973)5 Washington v, Texas, 366 U.S. 14 (1967). However, the

ripht is mot acpolute; the state may properly condition the admissability of evidence

non rules which are desi ned to further légitimete state inte rests. .

he cupreme Court has recogniced thet states leve a legitimate interest in prevent-

ing o criminal defencert from concocting a lost mimute alibi. pardive ve. Oregon, 4!'12 Us.

LM, «%h-479 (1973)5 vtdlJome ve Flor da, 379 U.S. 78, 81 (19%).

nowever, state ;recedura]l requirements mst conform to the limite of the Constitution.

The issue this court mst consider is whether petitioner's trial was rendered funcamental;y

unteir by the trial court's decision to exclude the testimory of nis alibi witnesses as

a sanction for failure to cmly with the court'é discovery order pu. suant to Aule 16(c),

The question of whether the exclusicn of relevant evidence, such as thet prévided

cy an aioli witness, as a sanction for ron=compliance with discovery rules violates

copstitutional rrinciples hes bean expressly leit open by the Supreme Court. Wandius supra,

412 U.c. at 83 nm. 14; pilideme supra, 399 U.S. at 472 ne db, The circuft courts have

split on theiseve, come holding that the Sixth Ameniment forbids the exclusion of

relevant evidence as a sanction to enforee discovery rules avaigst crimina] deferdants,

Undted tates ve Javis, 699 #. <¢ 239, 243 (Sth Cir, 19861); see, Urited States vs Watson,

069 F. 24 1374, 1583 (11th Cir, 1982) while others hold that such conditions do not

vice the fundamentals od due process, United States v, Smith, 524 Ff. 2d 1288 (D.C.Cir.

1975); sSder ve Crouse, 357 F. 24 317 (10th Cir, 1966).

In United States v. white, 583 F. Jd 899 (oth Cir, 1978), the Sixth Circuit examined

the issues of whether « trial court abused its discretion in ex.luding defersn alibi

testimeny to sanction non-ccmplaince with the alibi witness disclosure provisions of ™le

1201, Ped. &. Crim. vr, There the defendant first offered the testimony of alibi »itnesses

siter both the prosecution end the defendent hed rested their cases, while observing

“het the trial court has the diseretion to rule on the admisibility of evidence, the

court Moted that the interest of the defen‘ant in shving « fair triai must be carefully

balanced against the interest of avoiding surprise and delays. The Court enumerated

several i.ctors to consider in striking this balance:

(1) the amount of prejudice thet resulted from the failure to

disclose, (2) the reason for non-disclosure, (3) the extent to which

the harm caused by non=disclosure was mitigated by subse u-rt

events, (4) the weicht of theproperly admitted evidence supporting tne

defendants guilt, (5) other relevant factors ari@ing out of the

circumstances of the case,

583 Fe 2d at 02, quoting from United states v, Myers, 550 ¥. 24 1036, 1043 (Sth Cir,

1977) The Ciurt of Appeals held thet the trial court ¢id not abuse its discretion under

ale 1241 in excluding the defense's alibi witnesses, The conctitutionality of “ule 12,1

was rot considered because the defendant did not contend tht the compulsc ry notice

provision tenied him due process or a fair trial. 583 #, 24 at 1, ne 3.

although the £ctors enumerated in the white decision were enployed to determine

whether the trial court hed abused its ‘isesetion ig making an evitertiary mulins, they

provide a useful framework for analysis of petitioner's constitutional claim, They are

perticul. rly relevent in that the unterlyin. interests are identical in each instance:

the fumlamenta, right to a .air triaj telanced against the interest of the state evoidirg

the untair surprise of an eleventh-hour alibi defense,

Consideration of these factor: leads us to conclude that the trial court's evicentiary

ruling did not deprive petitioner of a fair trial.

The prosecution in this case was severly prejudiced by petitioner's failure to

disclose the names of Ms, Claprer and “s. imith until the morning of trial. “ad they been

peruitted to testify, the prosecution would have been depriged of any opportunity to

interview the witnesses or investigate their r orerentations, The -rosecétion would have

been thereby prevented from developing any meaningful cross-examination.

Perhaps more importantiy, this is not a case in which the evitence wae excluded

wlely a the result of the failure of petitioner's counce] to comply with the discovery

p.ocedures. See, Jom v. Cardwell, 464 7. 24 639, bbe (oth Cir. 1972)¢ Counsel for

petition r informed the court that the nanes of these witnesses h.4 been deliberstely

withheld by petitioner until the day before the trie], in spite of repeated requests by

counsel for the “mmmes of anyboty who eould help". Despite petitioner's assertations

to the c.ntrary, his attorney het virited hig on numerous oc-esions ueth in -clumbus and

canesville, and petitioner had anple opportunityto discuss tiis matter with counsels

In fect, counsel Jor pe: itioner mde nmunerous motions to the court requesting that

te be aliowe to withdraw as counsel, for the specific reason that petitioner hed refused

t. cocrerate und assist in his own deferse, ihe Court admonished petitioner or several

occasions rm. arding his lack of cooperation with counsel. Since petitioner deliverstely

thwarted his coussel’s effcrts to provide him with « ‘air defense, he crre*t ™ em le‘

ut 1 * os heen dened a fair trial due to an evidentiary malin. wiich came 5 a direct

rerult of his failure to cooperates

“Morcover, the trial court ¢id mot exclude 1.1 of the alici evi‘ence, Fetitioner

teotified in aie own cefense, amt Mr. Draewlecki was also permitted to testify rerardirg

petitioner's alioi. However, in light of the testimory of the state's witnesses «nc the

cact that peitioner's finrerprinte were found on the victim's gies es, it is apperent

uhet the fury ¢id not believe the alioi testiaory.

It is doubtful that the jury would have believed the alibi testiaorg of the two

aiiitional witnesses who were both members of petitioner's family. See shite, suprs

563 7. 24 at Win

~@ agree with the Firth Circuit that the exclusion in a criminal case of relev-nt,

prcecativ , amt otherwide atmissable evidence solely for non-compl:ince with a discovery

rule is an extreme sanction. United States v_ Davis, 639 F. 2d 239, 243 (Sth ir. 1981).

x

_owever, we believe that there are overriding policy considerations supportive of the

trial court's determination in this cave. The discovery rules were desirned specifically

to prevent the cecurance of events such as ere presented in this case. The interest of

the Ltate in evoidiny the conce@fion of last minute alibis by criminal defendsn's was

comprevised in this cave by a deliberate withholding of infornatéon on the part of the

petitdoner. His two alibi witnesses were both family meubers, so he certainly «rew of

teeir identities and whereavouts. He hai anple opportunity to notify counsel of his alibi

éefense ani witnesses. The Criminal mules were adoptet to serve the purpose of ensuring

« full ond fair trial for aii partues in « criminal action. A defemtant who deliberately

_ttempts te subvert the policies am? provisions of these rules cannot be heard to compl: in

‘ht bis trial was unceir when such an attempt has been obstructed.

ror the reasons ¢iscussed above, theCourt concludes that petitioner ««s not ¢enied

a fair trial ween the trial court excluted the tectisaory of his tvo alibi witnesses

as a sanction for his ¢eliterate failure te comply with its discovery crder.

lll

Petitioner's second claim forrelief is that the trial court erred wen it rlsced

restrictions on his richt to return te the courtroom «iter he requested that he be allowed

to volunterily sdsent himself from the trial.

Petitioner vecame quite acitat ¢@ after tris: court refused to permit him to cal] his

two <li i witnesses. Lee tiecussion, jakms. "e engaged in several outbursts with the

court, prosecutcr and spectstors while on the witness stand. cubsequert to ric direct

testimony ird curing cross—examination, petitioner requested that he be allow? to remove

himself from toe courtroom,

cut of the presence of the jury, the folle~ing ¢ialogwe took place betwen the

court ard petitioner:

th trial in pour ab ence ond so the elendant any be reawet at

a Gis tine, I sight point owt Sefore you leave for the record

twat if pou should desire to return te the at

tiwe with the unmterst

counsel ané refrain fro arty further cutturste, then the C

woul? discuss th.t with you et that time and I woujd preve*ly

orinr pow back, “© you unt rsten what I ap saying?

SSIs Ted -2T™2s WOES Me Woe T I TS.

(Transcript at 2.0).

-etitioner contends that the Court sheuli not hewe placed these confitions on tis return

im sictt of the fact thot so finfin was msde that petitioner fai.et te cooperste with

nis attorney or that he was er acing in outdursts.

respondent arrves that under Chie lew the conduct of the trial is within the dis-

cretion of the trial jutg~ amt that such a question is not cognizable in a feters)

«8? as corpus action.

“he Piget of a cricdnal ¢defentant to be present Guring trial proceedings is

eccemtias to we fundawntals off due process,

aicSES Ne “cibed states, O22 U.S. 35, 38 (1975). The Simth suenteen: right of confrontation

is so fun@amerta, as te be part of the "due process of law’ guarenteed to feferiants in

state criminal precesdings by the fourteenth Amemiment. fointer v. Temps, 290 0.0. WO

('905); Eqmette we isernia, 42 Uc. e06 (1975).

“owever, the right te Se present during trial proceedings is not abeclute, and aay

m waives ty tne defentant. Lidigeis ve Ablen, 397 VU... 337, 343 (197%); Copter vy. Maes.,

27 Uc. 97,99 (GR, . If the defender: knew or should have known of his right to te

tresent, "is wluntary aosence from the proceedings presents mp constitutional violation,

Taylor ¥. UniteSta es, 1. U.S. 17, 1920 (1973); Dies v, UnitedStates, 442, us (1982).

In heading thet « Gefentant's conduct may justify his forged remeval ‘rom the court-

room, he -upreme Court noted that there was n@thing unconstitutiona] in the procedure of

allowing the defendant to return te the courtroom “as soon as the defendant is willing

to i mtuct bimpels consistantly with the decurum and respect inherent in the concept

of courts ond judicial proceedings.” [)lingis vy. Allen, 397 VU... 337, 343 (1970)

Des Gonieg. 398 UV... 995 (197%). The eane is true for cases in Wich the ¢efen ant has

volumtarist remved himself from the courtroca,

Tw tried coust has the right ond responsibility te control the confuct of al] persons

me 2 peaB in tne courtroom. The trial judge certainly requires nothing unduly durtenscas

ater he acs only that the defendant refrain from disrepting the proceedings and aake

some effort te cooperate in his own de.ense in order to Be allowed to return to the court-

sOc@, Accomtingly, thecourt fimts that petitioner's second claia is eithout aerit.

‘etitioner’s taint grow for relief ie that evitence conmmecting hia ‘co the erine

wes “unlewfully reapvet ant febriceted". Petitioner contents that the fingerprints

~insing him to the crive were not found on the victia's glasses, tut were obtained free

“2° Personal property ‘aaen during .earches of his how, At trial, petitioner testified

te his Delief that the fire-rprints were ootained from objects which wre remove: fron

nis come ¢uring illegal searches comfucted by the police.

The United States Supreme Court held in tone y, Poweh), 628 Uc. 265, 4% (1976) that:

introduced st trial.

the ited _tates Court of Appeals for the ‘ixth District hes determined that the

appbiestion of Stone vy. lowell, supra, requi res « tue analysis:

abl Jo Seay, 7% *. 24 522, $26 (1982).

The Court of Appeals further hel¢ in Jijey vy, Jowel) suprs, 67% F. 24 at 526

‘hat Loe ho proce@ural wechenisa for consiteration Fourth Amendment claim prevites an

at~qe te ©, portunity for review of those claims, Therefore, our inquiry tunes te whether

Presrnteti n of petitioner's clais was frustrated by « failure of nat mecharisn,

he Court her reviewed the suppression hearing am! concludes tht petitioner

we pervitted fully ent fairly te present his rourth Amenmtwnt clains, “her, petitioner

as Ot ertitied te rel.ef in federal h beas corpus on thir basir.

~i tererd to the a1] pation thet the ewidence in thie case war (si ricoted

petitioner hs failed te point to any evitence which would cubetentiateni> clein. The

vourt i 8 carefu-.y reviewed the hearing on the aption te suppress and the finwerprint

testimony ad¢uced at the trial, Petitioner's cium el cross-examined each witress at

Joreth re, ocdimg the or'cin of the fimerprinte. “he jury apps rently foun’ that there

wut vudficiert evidence te exteblish thet the fingerprints fount on the victin's classes

were those of petitioner. (veral], there i@ nothing in the trial record Sugeettive of

io proper concuet om the part of the relice or prosecutor, A claim for relief in « hebeas

corfus procee<ing must fr t on someWhing wore substantial thar conclusory allerations

ant ugportc? ty tne recom,

the Court hel's thet petitioner's third claim for reis.. does not raise the

possidility of constitubions] error antis therefore not cognizable in h. beas corpus.

accortin ly, petitiorer’s third claim for relief is “EMIT.

‘PisBPOR, the cour’ MULLIS thet the petition is -ithout merit; ar’, there@ore,

it is -b.2mD.

This action is hereby DIS"ISED. the clerk of Court shall enter SUID T for

resrordent.

/e/,

) JOHN P. HEMI, Clert

LARRY RAYMOND SMITH, : fl,

Petitioner- Appellant, ;

)

v 4 QgReER

)

ARNOLD R. JAGO, SUPT., ) NOT MECOMMENDED TOR FULLTEXT Put ICANION

5 Se Gee ee ee ee ee ee ee

Respondent -Appeliee. ta ote C&G © © preeeeting @ 6 cow! me ber Cree

& 8 6 Cape ot Oe erres an oe gerne: Onde Vout

) ae meres 4 10 be prom-neerty Gupieved "ts Care es 4 cepresered

BEFORE: ENGEL and WELLFORD, Circuit Judges; and HORTON,

District Judge*

This Ome State prisoner appeals from a district court judgment dismissing his

habeas corpus petition filed under 28 U.S.C. 32254. Petitioner attacked his 1981 jury

convietion for rape for which he was sentenced to serve seven to twenty-five years.

Petitioner alleged the following three grounds .» hus petition. i) the trial court improperly

refused to allow him to call two alibi witnesses; 2) the trial court improperly placed

conditions on his might to return to the courtroom after ne voluntarily ebsented himself

from the courtroom; and, 3) proofs of his fingerprints were illegally fabricated and

admitted into evidence. The district court dismissed the petition as to the first two

grounds on the merits and declined review of the third ground.

On appeal, the petitioner argues thet admission of the testimony from fis alidt

witnesses would not have placed any acditional burden on the prosecutor as the court

was already allowing the admission of testimony from another alibi witness which aiso

showed that petitioner was in Florida and not im Ohio at the time of the rape. Secondly,

petitioner argues thet the trial court should not heve pieced conditions on his return

to the courtroom because he left the courtroom volunterily and not because he hed

T""The Wonorable Odell Worton, U.S. District Judge for the

Western District of Tennessee, sitting by designation.

No. #3-3524

-2-

exhibited any disruptive behavior. Petitioner does not raise his

third issue on appeal, which he had raised in the district court.

Upen review, this court concludes that the district court

properly dismissed petitioner's habeas petition for the reasons

given by it. The trial court clearly did not render petitioner's

trial fundamentally unfair by refusing to permit the petitioner

to call his mother and sister as two additional alibi witnesses

(neither was proffered to be able to testify as to his whereabouts

on the day of night of the rape). Cf. Logan vy. Marshall, 660 F.24

Li21, 1123 (6th Cir. 1982); Moore v. Newell, 548 F.24 671, 672

(6th Cir.), cert. denied, 431 U.S. 971 (1977). Application of

the factors which this court enumerated in its discussion on an

simost identical issue raised in United States v. White, 583 F.2¢

899, 902 (6th Cir. 1978), shows no abuse of discretion nor « denial

of funé-mentel fairness in the trial court's ruling. The disclosure

of the two additional names on the day of trial would not have

provided the state with sufficient time to interview the witnesses

OF to investigate their representations. Furthermore, petitioner's

trial counsel informed the court that the names had been dbliberately

withheld by petitioner until late in the day before the trisl.

This occurred despite repeated requests by counsel for names of

anybody who could help his couse. (See App. at 165). sotwith-

standing the exclusion of the testimony, the alibi defense was

placed into the record for the jury to consider by another witness

who appeared as being more objective than petitioner's mother and

No. 63-9524

-3-

sister. Finally, the evidence of quilt wes substantial. Petitioners

home was close to the scene of the crime. Petitioner smoked the

same brand of the cigarette found in the victia’s car, end, most

Gamaging, petitioner's fingerprints were found on the victim's

eyeglasses, which were removed from the victim @uring the course

of the rape.

Regarding petitioner's second issue, it is observed, as the

Gistrict court so noted, thet the right to be present during trial

proceedings is not absolute and may be waived by the defendant.

iLlipois v. Allen, 397 U.S. 337, 343, ceh. denied, 396 U.s. 915

(1970); Sny@er v. Massachusetts, 291 U.S. 97, 96 (1934). And,

as the Supreme Court so observed in Illinois v. Alles, supra.

397 U.S. at 343, there is nothing unconstitutional in the procedure

of allowing the defendant to return to the courtroom “as soon as

the defendant is willing to conduct himself consistently with the

Gecorwm and respect inherent in the concept of courts and judicial

proceedings.“ Ci ly, it is « neteral and reasonable extension

of this principle to apply it in « case where the defendant volun-

terily absents himself from the courtroom following outbursts

éguring the trial, thereby obviating the need to establish obstreperous

behavior. The conditions placed on petitioner's return in this

case were not unreasonable, arbitrary or capricious. The éecisions

rendered in fyans vy. United States, 264 F.24 393 (6th Cir. 1960)

ané in Cross v. United States, 325 F.24 629 (D.C. Cir. 1963),

So. 83-3526

-+-

relie@ upon by petitioner, are clearly distinguishable on their

facts; ané the decision rendered in Pearson vy. United States, 325

F.2¢ 625 (D.C. Cir. 1963), cether than supporting petitioner's

srguments, supports th« trial court's decision to grant petitioner's

request te leewe efter the court discussed the setter with oli

concerneé. (The petitioner ebsented himself ower the objections

of the prosecutor end his counsel's sévice.)

Finally, petitioner is Geemed to hewe sbendoned his third

seeue teised in the Gistrict court. David vy. Meggic, 706 F.24

568, STL (Sth Car. 1903); Onited States v. Sruscine, 662 F.24 450,

#62 (7th Car. 190R), cost. Genied, 163 S. Ct. 1205 and 1235 (1903);

McGrew vy. Unite? Ass'n of Journeymen and Aperentices, 341 F.24

705, 720 (6th Cic. 1965). The search and seizure cleim, soreover,

clearly is unreviewable in this habees action. Biley ¥. Gray.

674 F.26 S22 (6th Cir.), corte. Gentes, 103 6. Ce. 266 (1982).

for these reesons, this penel enenimously egrees thet oral

ergument is Sot secessery in this appesl. Sule Mis), Pederel

Bules of Appellete Procedure. The ¢istrict court's jutqrert is,

sccorgingly,. effirmed pursuant to Bule $14)3, Bules of the Sixth

Circuit.

FILED

JUN 2 81983

LARRY R. SMITH .

KENNETH J. [IURPHY, Clerk

Petitioner COLUSBUS, OBI9

vs. Civil Action C-2-83-481

ARNOLD R. JAGO, Supt.

Respondent

QPINION AND ORDER

2 Ok Petitioner, a state prisoner, brings this action for a

Ret —_—

it of habeas corpus under the provisions of 28 U.S.C. $2254.

This matter is before the Court on the petition, return of writ,

transcript of proceedings in State v. Larry Raymond Smith, No.

81-3 (Muskingham Cty. C.P. Ct. Nov. 1981), and the briefs and

exhibits of the parties.

Petitioner was indicted by the January, 1981 Term

Muskingum County, Ohio Grand Jury for one count of rape in viola-

tion of $2907.02, Ohio Revised Code. Petitioner was tried to a

jury which found him guilty as charged. On November 16, 1981

petitioner was sentenced to a term of seven (7) to twenty-five

- 20 yeas Speen. ... ...-... bees a

Petitioner directly appealed his conviction to the

Court of Appeals for Muskingum County, Ohio alleging the follow-

ing assignments of error:

1. The trial court abused its discretion in

refusing to permit the defendant to call

two witnesses.

2. The court erred when it placed conditions

upon the defendant's right to return to

the courtroom after the defendant indicated

that he wished to be allowed to voluntarily

absent himself from the trial.

On August 3, 1982 the Court of Appeals overruled petitioner's

assignments of error and affirmed the judgment of the trial

court.

Thereafter, petitioner sought review in the Supreme

Court of Ohio. On February 2, 1983, that Court overruled peti-

tioner's motion for leave to appeal and sua sponte dismissed the

appeal for want of a substantial constitutional question.

Petitioner alleges that he is in the custody of respon-

dent in violation of the Constitution of the United States in

that:

1. The trial court abused its discretion in

refusing to permit the defendant to call

two witnesses.

2. The court erred when it placed conditions

— the defendant's right to return to

the courtroom after the defendant indicated

that he wished to be allowed to voluntarily

absent himself from the trial.

3. The evidence was unlawfully removed and

fabricated.

Petitioner‘s third ground for relief has never been

presented to the Ohio courts. A state prisoner is required to

exhaust all available state judicial remedies before he may seek

redress by way of petition for federal habeas corpus. Picard v.

Connor, 404 U.S. 270, 275 (1971). If his constitutional claims

have not been fairly presented by any procedure available in the

state courts, his claims have not been exhausted. 28 U.S.C.

$2254 (b), (c).

Petitioner explains that the third claim was not

presented in the Ohio courts because his attorney refused to do

so. Respondent contends that petitioner still has available the

remedy of post-conviction relief pursuant to §2953.21, Ohio

Revised Code. Consequently, respondent asserts the petition must

be dismissed in its entirety for failure to exhaust state

judicial remedies as required by 28 U.S.C. §2254(b),(c).

Petitioner's factual allegations concerning his third

ground for relief are as follows:

The primary evidence that linked the defendant

to the crime were two fingerprints taken from

the victim's glasses. The fingerprints were

removed from the glasses, and the glasses was

{sic] returned the [sic] victim the next day.

As evidenced by the trial record, it is petitioner's position

that his fingerprints, which were allegedly taken from the

victim's glasses, were not taken from those glasses at all.

Rather, petitioner asserts that the fingerprints were removed

from his personal objects, which he contends were illegally

removed from his home by the sheriff's department.

Under Ohio law, constitutional issues cannot be consi-

dered in post-conviction proceedings under §2953.21 of the

Revised Code where they have already been or could have been

fully litigated, either during trial or on direct appeal. Keener

v. Ridenour, 594 F.2d S81, 586 (6th Cir. 1979); State v. Perry,

10 Ohio St. 24 175, 180 (1967); State v. Roberts, 1 Ohio st. 34

36, 39 (1982). Petitioner was aware of his evidentiary claim

with respect to the fingerprints at the time of the trial. This

is evidenced by the fact that he filed a motion to suppress that

evidence, which was overruled by the trial court. Thus, although

he had an opportunity to fully litigate the issue both at trial

and on direct appeal, petitioner failed to pursue the matter.

The claim is therefore not cognizable in a post-conviction

proceeding under §2953.21 of the Revised Code. Id.

It is not disputed by respondent that petitioner is

precluded from raising the claim in any other state court

proceedings. Accordingly, the Court concludes that petitioner

has exhausted all available state remedies with respect to his

third ground for relief as required by 28 U.S.C. §2254(b), (c).

I

The facts of the case, as presented at trial, are as

follows:

On the evening of November 14, 1980 Karen Merry was

attending an accounting class at Ohio University in Zanesville.

After the class was dismissed at 9:00 p.m., she remained in the

building to discuss some questions with her professor. At

approximately 9:30, she left the building and proceeded to her

car, which wes parked in an adjacent lot. As she sat in the car

warming the mo*or up, @ man approached from behind. He opened

a

the driver's door and directed Ms. Merry to move over to the

passenger's side of the car.

The man, who was wearing a ski mask, drove the car to

Adams Circle. There he pulled off the road into a small turn-

off. He stopped ‘the car some ten to twenty yards from the street

and sat smoking a cigarette. When Ms. Merry attempted to leave

the car, the man placed a knife at her throat and told her that

he would kill her if she did not have sexual relations with hia.

As the man undressed Ms. Merry, he removed her glasses and threw

them into the back seat of the car. The man then sexually

assaulted Ms. Merry and raped her. He subsequently left the car,

directing Ms. Merry how to drive away from the area so as to

avoid a ditch. Within one-half hour of the assault, the rape was

reported to the police.

Throughout their investigation, the police treated

petitioner as a suspect. + He lived within 80C yards of Adams

Circle, the site of the assault. He was known by police to own a

ski mask of the kind described by Ms. Merry. Further, his

height, weight, and body build were similar to the description

Ms. Merry gave of her assailant.

Petitioner's name was sent, along with lifts of the

fingerprints obtained from Ms. Merry's glasses, to the FBI in

Washington, D.C. There the fingerprints were positively identi-

fied as those of petitioner. He was subsequently arrested in

Jacksonville, Florida.

At trial, the state's case consisted primarily of Ms.

Merry's testimony, along with other physical evidence connecting

petitioner to the crime: the close proximity of his home _to the

scene of the rape, the fact that petitioner smoked the same brand

of cigarette which was dgeee found in Ms. Merry’s car, and the

identification of his fingerprints which were found on Ms.

Merry's glasses.

Petitioner's alibi defense was that he was in Florida

from the end of September, 1980 until his arrest there in

January, 1981. Richard Drzewiecki testified that he met peti-

tioner in Jacksonville, Florida @uring late October, 1980. He

saw him at least 3 times a week through the date of the rape. He

had no specific recollection of petitioner's whereabouts on

November 14, 1980. On cross-examination, Mr. DOrzewiecki admitted

that he and petitioner were incarcerated together while petition-

er was awaiting extradition from Florida to Ohio on the rape

charge.

+e 4

Petitioner's first claim is that the trial court abused

its discretion in refusing to permit him to call two witnesses at

trial, depriving his of his right to fair trial and to fully

develop his defense.

After providing full discovery, the state requested

reciprocal discovery from the defense pursuant to Rule léic) of

the Ohic Rules of Criminal Procedure. The trial court ordered

the defense to provide full discovery by entry filed October 30,

1981. At appromimately 4:00 p.m. om the day prior to trial,

petitioner provided the state with the name of Richard

Drzewiecki, an alibi witness.

On the morning of trial, the state was advised of the

names of two additional alibi witnesses, Karen Clapper and Lura

Smith. Petitioner's counsel proferred that Lura Smith, petition-

er’'s mother, and Karen Clapper, his sister, would have testified

that during October and November, 1980 they eac. received collect

telephone calls from petitioner in Florida. /?etitioner also

offered a telephone record or records supporting this proferred

testimony.

# Petitioner's attorney informed the trial court that

petitioner had withheld these names from him until the late hours

of the day preceding trial. The trial court permitted mr.

Orzewiecki to testify, but precluded petitioner from calling Ms.

Clapper or Ms. Smith. The state court of appeals held that this

ruling was properly within the scope of the trial court's

@iscretion. Respondent submits that the trial court's ruling

with regard to the requirements of Rule 16 of the Ohio Rules of

Criminal Procedure is exclusively within the province of the

state judiciary.

+ Petitioner contends that he should not have been held

te the technical requirements of the discovery rules with regard

to notifying the state of his alibi witnesses. He indicates that

he was incarcerated in Columbus until the day preceding the

trial, which was held in Zanesville. He asserts that, for this

reason, he hed insufficient opportunity to reise the setter with

counsel. \ Bowever, petitioner's attorney state on the record at

trial thet he hed discussed the case with his client on « number

of occasions, and that he hed repeatedly asked for the sames of

witnesses who could establish « defense. Petitioner refused to

cooperate with his. Petitioner ¢id sot sention his mother and

sister to defense counsel until the day before trial.

Petitioner further reasons that by providing the state

with the seme of Mr. Orzsewiecki, he placed the state on notice

thet it would be required to respond to an slibi ‘tefense.

Beceuse Ms. Clapper and Ms. Smith would have also testified as to

the slibi defense, in petitioner’s view, the prosecutor would

have not been prejudiced or surprised by the lest-einuete intro-

duction of new defenses.

In @ habeas proceeding, « United States District Court

Goes sot exercise direct review over state court decisions.

Rather, the scope of federal habeas review is confined to errors

which are of constitutional dimension. Sell v. Arn, 536 F.24

123, 125 (6th Cic. 1976). Generally, stete court rulings on the

eGmission of exclusion of evidence do sot reise constitutions!

issues. Surke v. Egeler, S12 7.24 221, 223 (6th Cir. 1975),

cert. denied, 423 0.5. 937 (1975); Reese v. Caldwell, 410 F.24

1125, 1126 (6th Cir. 1969); Gemmel v. Buchhoe, 358 7.24 338, 340

(6th Cir. 1966), cert. denied, 385 U.S. 962 (1966). However, «

trial court evidentiary ruling sey render the trial so fundament-

ally unfair as to constitute « Genial of federal rights. Logan

©. Marshall, 690 7.26 1121, 1123 (6th Cir. 1962); Gillihes v.

Rodrigues, S51 7.24 1182, 1191-2 (10th Cir. 1977); Bell v. Arn,

supra, 536 7.24 at 125.

¢ The right to present witnesses in one’s behalf is «

fundamental right meade applicable to the states by the due

process clause of the Fourteenth Amendment. Chambers v.

Mississippi, 410 U.S. 294 (1973); Washington v. Texas, 388 0.5.

14 (1967). However, the right is not absolute; the state may

properly condition the admissibility of evidence upon rules which

ere designed to further legitimate state interests. +

The Supreme Court hes recognized thet states have «

legitimate interest in preventing « criminal defendant from con-

cocting « last-minute slibi. WMardius v. Oregon, 412 0.5. 470,

474-475 (1973)s Williams v. Florids, 399 U.S. 78, 81 (1970).

Rowever, state procedural requirements sust ccnform to the limits

of the Constitution. The issue this Court must consider is

wheth petitioner’s trial was rendered fundamentally unfair by

#1 court's decision to exclude the testiaony of his alibi

aeeees a6 & sanction tor failure to comply with the court's

discovery order pursuant to Sule iéic).

The question of whether the exclusion of relevant evi-

gence, sich as thet provided by on slibi witness, es « sanction

‘or«ron-compliance with discovery rules violates co stitutional

principles hes been expressly left open by the Supreme Court.

Serdias, supra, 412 U.S. at 83 m. 14; Wilijemes, supra, 399 0.5.

at 472 . 4. The circuit courts heave split on the issue, some

holding that the Sixth Amendment forbids the exclusion of

relevent evidence ss « sanction to enforce discovery rules

against criminal defendants, United States v. Davis, 639 F.24

239, 243 (Sth Cir. 1981); see, United States v. Watson, 669 F.24

1374, 1383 (Lith Cie. 1982), while others hold that such sanc-

tions do not violate the fundamentals of due process. United

States v. Smith, $24 F.24 1208 (©.C. Cir. 1975); Rider v. Crouse,

357 F.24 317 (LOth Cir. 1966).

Im Onited States v. White, 583 F.34 899 (6th Cir.

1978), the Sixth Circuit examined the issue of whether « trial

court abused its discretion in excluding defense alibi testimony

te sanction non-compliance with the slibi witness disclosure

provisions of Rule 12.1, Fed. &. Cris. P. Ther the defendant

first offered the testimony of slibi witnesses after both the

prosecution and the defense had rested their cases. While

observing that the trial court hes the discretion to rule on the

eGmissibility of evidence, the Court noted thet the interest of

the defendant in having « fair trial gust be carefully balanced

against the interest of avoiding surprise and delaysg The Court

enumerated several factors to consider in striking this balance:

Gieclosure, (}) the extent to which the hare

caused by non-disclosure was mitigated by sub-

sequent events, ys it. tA J-.-

admitted evidence supporting the ‘s

quilt, and (S$) other relevant fectors arising

out of the circumstances of the case.

$83 7.24 at 902, quoting from Onited States v. Myers, 550 ©. >

1036, 1043 (Sth Cie. 1977). The Court of Appeals held that the

trial court did not abuse its discretion under fule 12 ° in

excluding the defense’s slibi witnesses. The constitutionality

of Rule 12.1 wes not gonsidezed because the defendant did not

contend that the compulsory nseotice provision denied hin due

process or a fair trial. 583 F.24 at 901, a. 3.

Although the factors enumerated in the White decision

were employed to determine whether the trial court had abused its

discretion in making an evidentiary ruling, they provide « useful

framework for analysis of petitioner's constitutional clain.

They are perticulerly relevant is that the underlying interests

are identical in each instance: the fundamental right to « fair

trial balanced against the interest of the state in avoiding the

enfaic surprise of eleventh-howr alibi defenses. Consideration

of these factors leeds us to conclude that the trial court's

evidentiary ruling 414 not deprive petitioner of « fair trial.

The prosecution in this case was severely prejudiced by

petitioner's failure to disclose the names of Ms. Clapper and Ms.

Smith entil the morning of trial. Sed they been permitted to

testify, the prosecution would have been deprived of any opportu-

nity te interview the witnesses or investigate their represente-

tions. The prosecution would have been thereby prevented from

developing eny meaningful cross-examination.

4 Perhaps sore importantly, this is not « case in which

the evidence was excluded solely as the result of the failure of

petitioner's counsel to comply with the discovery procedures.

See, Cox v- Cardwell, 464 7.24 639, 644 (6th Cir. 1972). Counsel

for petitioner informed the court thet the names of these wit-

nesses had been deliberately withheld by petitioner until the day

before trial, in spite of repeated requests by counsel for the

1

“names of anybody whe could help.* OSespite petitioner's

eesertions to the contrary, his ettorney hed visited hie on

A’ wapazous cccasions beth in Columbus end fanesville, and

petitioner hed ample opportunity to discuss this matter with

counsel.

tn fact, counsel for petitioner made numerous motions

to the court requesting that he be permitted to withdrew as

counsel, for the specific reason that petitioner hed refused to

cooperete and assist in his own defense. The court sdmonished

petitioner on several occasions regarding his leck of cooperation

with counsel. Since petitioner deliberately thwarted his

counsel's efforts to prowide hie with « fair defense, be cannot

now complain that he hes been denied « fair trisl due to an

evidentiary ruling which came as « direct result of his failure

to cooperate.

Moreover, the trial court did not exclude ali of the

slibi evidence. Petitioner testified in his own defense, and

Mr.Ortewiecki was «leo permitted to testify regarding petition-

ers alibi. Sowever, in light of the testimony of the state’«

witnesses and the fact thet petitioner's fingerprints were found

on the victia’s glesses, it is apparent that the jury 4id not

believe the elibi testinony. Tt is doubtful thet the jury would

have believed the alibi testimony of two additional witnesses whe

wove beth apubere of potitiense’s fantiy. See, White. supra. 5)

?.24 at 902.

We agree with the Fifth Cirewit thet the exc’ sion (a «

criminal case of relevant, probetive, and otherwise sdmissible

12

+ evidence solely for non-compliance with « Giscovery rule is on

extreme sanction. United States +. Davis, 639 7.24 239, 243 (Sth

Cie. 1981). Sowevwer, we believe thet there are overriding policy

considerations supportive of the triel court's determination in

this cease. The discovery rules were Gesiqned specifically te

prevent the occurrence of events such as ere presented by this

case. The interest of the state in svoiding the concoction of

last minute alibis by criminal defendants was compromised in this

case by « Geliberste withholding of information on the part of

petitioner. Sie tue slibi witnesses were beth family aenbers, co

he certainly knew of their identities and whereabouts. He had

ample opportunity to notify counsel of his elibi defense and

witeesses. The Criminal Beles were edopted to serve the purpose

of ensuring « fell end fair trial for sll parties in « criminal

ection. A Gefendant whe deliberately ettesptse to subwert the

policies end orevisions of these rules cannot te heard to

complein thet bie triel wee enfeir when such on ettempt hes beer

obetructed.

for the reasons discussed above, the Court concludes

that petitioner wes not denied « fair trial when the triel court

excleded the testimony of his two slibi witnesses a6 & sanction

for his Geliberete failure te comply with its discovery order.

» > tm

Petitioner's second cleia for relief is thet the trial

court erred when it pieced restrictions on his right te retern to

the courtroce efter he requested thet he be sllowed to volunteri-

ly abeent himself from the trie.

Petitioner became quite egiteted efter the triel court

cefesed to permit bie to cell Bis two slibi witnesses. See ¢ie-

took place betwen the court and petitioner:

THE COURT: All right. Gver the tea of

the prosecuting and over reces-

cenfetion contrary of Se yy HA

qrant thet request te fect thet

Oo eee eee ee tn thie cnee and if you we

te

tefendart be cemowed ot thie tine.

ciget point set before leave for the

record thet if you éGesire to reters

.

!

;

standing thet cooperate wit? your

a asl end retrain free any further outbursts,

chee the Court would discuss thet with poe st

chet time and I would probebly bring poe Sect.

:

:

Petitioner contends that the Court should sot heve pleced these

conditions on bis reters in Light of the fact thet so finding vee

seGe thet petitioner failed te cooperete with Bis ettersey of

that he was engaging in outbursts.

ee

Respondent argues that under Ohio law the conduct of

the trial is within the discretion of the trial judge and that

such a question is not cognizable in a federal habeas corpus

action.

““. The right of a criminal defendant to be present during

trial proceedings is essential to the fundamentals of due

i9F> the Court extesiy

76 (19197, orderly

the

jury is a

until it discharged after rendering

verdict.’

“rogers v. United States, 422 U.S. 35, 38 (1975). ‘The Sixth

Amendment right of confrontation is so fundamental as to be part

of the ‘due process of law’ guaranteed to defendants in state

criminal proceedings by the Fourteenth Amendment. Pointer v.

Texas, 380 U.S. 400 (1965); Faretta v. California, 422 U.S. 806

(1975).

« However, the right to be present during trial proceed-

ings is not absolute, and may be waived by the defendant.

Illinois v. Allen, 397 U.S. 337, 343 (1970); Snyder v. Mass. 291

U.S. 97, 99 (1934). If the defendant knew or should have known

—— —

a -— ae

of his right to be present, his voluntary absence from the

proceedings presents no constitutional violation. Taylor v.

United States, 414 U.S. 17, 19-20 (1973); Diaz v. United States,

442, 445 (1912).

15

In holding that a defendant's conduct may justify his

———

forced removal from the courtroom, the Supreme Court noted that

—- ~ ”

there was nothing unconstitutional in the procedure of allowing

the defendant to return to the courtroom “as soon as the

defendant is willing to conduct himself consistently with the

decorum and respect inherent in the concept of courts and

judicial proceedings.” Illinois v. Allen, 397 U.S. 337, 343

(1970), reh. denied, 398 U.S. 915 (1970). The same is true for

cases in which the defendant has voluntarily removed himself from

the courtroom.

The trial court has the right and responsibility to

control the conduct of all persons who appear in the courtroom.

The trial judge certainly requires nothing unduly burdensome when

he asks only that the defendant refrain from disrupting the

proceedings and make some effort to cooperate in his own defense

in order to be allowed to return to the courtroom. Accordingly,

the Court finds that petitioner's second claim is without merit.

Iv

Petitioner's third ground for relief is that evidence

connecting him to the crime was “unlawfully removed and fabri-

cated." Petitioner contends that the fingerprints linking him to

the crime were not found on the victim's eyeglasses, but were

obtained from his personal property taken during searches of his

home. At trial, petitioner testified to his belief that his

fingerprints were obtained from objects which were removed from

his home during illegal searches conducted by the police.

16

The United States Supreme Court held in Stone v.

Powell, 428 U.S. 465, 494 (1976) that:

where the state has provided an opportunity

for full and fair litigation of a Fourth

Amendment claim, a state prisoner may not be

granted federal habeas corpus relief on the

ground that the evidence ined in an

unconstitutional search and seizure was

introduced at trial.

The United States Court of Appeals for the Sixth Circuit has

determined that the application of Stone v. Powell, supra,

requires a two part analysis:

Initially, the district court must determine

whether the state procedural mechanism, in

the abstract, presents the unity to

raise a fourth amendment c + «++ Second,

the Court must determine whether presentation

of the claim was in fact frustrated because

of the failure of that mechanism.

Riley v. Gray, 674 F.2d 522, 526 (6th Cir. 1982).

The Court of Appeals further held in Riley v. Gray,

supra, 674 F.24 at S2e that the Ohio procedural mechanism for

considering Fourth Amendment claims provides an adequate oppor-

tunity for review of those claims. Therefore, cur inquiry turns

to whether presentatio. of petitioner's claim was frustrated by a

failure of that mechanism.

The Court has reviewed the suppression hearing and con-

cludes that petitioner was permitted to fully and fairly present

his Fourth Amendment claims. Thus, petitioner is not entitled to

relief in federal habeas corpus on this basis.

17

With regard to the allegation that the evidence in the

case was fabricated, petitioner has failed to point to any

evidence which would substantiate his claim. The Court has

carefully reviewed the hearing on the motion to suppress and the

fingerprint testimony adduced at trial. Petitioner's counsel

cross-examined each witness at length regarding the origin of the

fingerprints. ithe jury apparently found that there was insuffi-

cient evidence to establish that the fingerprints found on the

victim's glasses were not those of petitioner. Overall, there is

nothing in the trial record suggestive of improper conduct on tie

part of the police or prosecutor. A claim for relief in a habeas

corpus proceeding must rest on something more substantial than

conclusory allegations unsupported by the record.

The Court holds that petitioner's third claim for

relief does not raise the possibility of constitutional error and

is therefore not cognizable in habeas corpus. Accordingly, peti-

tioner's third claim for relief is DENIED.

WHEREUPON, the Court HOLDS that the petition is without

merit; and, therefore, it is DENIED.

This action is hereby DISMISSED. The Clerk of Court

shall enter JUDGMENT for respondent.

~~ ™ -

i8

OPPOSITION

BRIEF

> ; = ..

)

- . umsnare es Of ves

84-5548 =

™ THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 19864

LARPRY RAYMOND SMITH,

Petitioner,

ARNOLD #. JAG, SUPERINTENDENT,

London Correctione) Inetitution,

Respondent

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS POR THE SIXTH CrACcUIT

ME CKORSENT'S BRIE’ IW OPPORITION TO PETITION

Reepectfully submitted,

ANTHONY J. CELOERRPEDGE, Jf.

Attorney nereal

Coa LD IQs,

GENE ¥. LIkER

1 of Seeore)

Pilate Off «+ Tower, D6th Flees

/ 3) taet eo. ed Street

/ Colwteus, Ohie 63215

“ 614/466-S414

ATTORNEYS FOR RESPONDENT

14-5543

Petitioner,

LARRY RAYMOND SMITH,

Vv

ARNOLD BR. JAGO, SUPERINTENDENT,

London Correctional Inetitution,

a

oo

Rigg

| |

Respectfully submitted,

a2

Conei ution

Certificate of Service

La

as

eet

QUESTIONS PRESENTED FOR REVIEW

Se

WHETHER A STATE TRIAL COURT RULING EXCLUDING CERTAIN ALIBI

EVIDENCE AS A SANCTION POR DEFENDANT'S FAILURE TO COMPLY WITH

THE TRIAL COURT'S DISCOVERY ORDER ENCOMPASSES A MATTER OF STATE

LAW WHICH IS PRECLUDED PROM REVIEW IN A FEDERAL HABEAS CORPUS

PROCEEDING AND FAILS TO OFFIND THE CONSTITUTIONAL PRINCIPLES OF

FUNDAMENTAL DUE PROCESS AND COMPULSORY PROCESS.

Il.

WHETHER WHEN A CRIMINAL DEFENDANT ENGAGES IN DISRUPTIVE OUT-

BURSTS AT TRIAL AND VOLUNTARILY REMOVES HIMSELF FROM THE COURT-

ROOM, THE PLACING OF CONDITIONS UPON THE DEFENDANT'S RETUR' TO THE

TRIAL PROCEEDINGS DOES NOT VIOLATE THE DEFENDANT'S RIGHT TO DUE

PROCESS UNDER THE FOURTEENTH AMENDMENT.

PARTIES

Pursuant to Rule 34.1 of the Rules of the Supreme Court,

all parties to this action are listed in the cantion of the case.

TABLE OF AUTHORITIES

Bell v Arn,

“Sit ¥.- 7a 123 (6th Cir. 1976) . . : :

eae v oT

. (6th Cir.) cert. denied 423 U.S.

937 (1975) . . . . ° ‘ . ° .

Ch rs Vv s ’

Cox v se eaT:

. (6th Cir. 1972) ° . ° .

Diaz v ss St"

eater Vv nt

. * 1982) . * . . * .

Lee v SaCTTLSTST.

asta toe v piaT vet Slate Co.,

Gemmell v B 9

" rt. denied 385 U.S. 962 (1966) .

oebyyen Vv oer Hse

. h Cir. 1977) *. *. . *

oe v sree:

5S. + Feh. denied 398 U.S. 915 (1970) °

an Vv rshall,

ope Fr = tee (6th Cir. 1982) ° ° ° .

. . 1965) . * . . . .

v ll,

" (6th Cir. 1966) . ‘ é .

R Vv ‘

" (10th Cir. 1966) . . . .

v ,

v J

. al a l, Slip. Op. (s.D. Ohio, June 28, 1983)

v ’

Say Slip Op. (6th Cir., July 19, 1984) .

ii

13

Table of Authorities continued..

Sr sir. 1981)

epbsy Seg MAY

. Cir. 1981)

‘

EE Sate cir. 1975)

‘

eS Sriciteecir. 1982)

ah ae

: ir. 1978)

,

. . 973). . .

h Vv ‘

. . ) . . .

will v ’

United States Constitution, Amendment XIV

United States Constitution, Amendment VI

28 U.S.C. Section 2254 . .

Rule 16, Ohio Rules of Criminal Procedure

Rule 12.1, Pederal Rules of Criminal Procedure

iii

14,16

17

16

14,16

16,17,18

14,15,17

4

14,17

10,17

CASE NO. 83-6524

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

LA®RY RAYMOND SMITH,

Petitioner,

Vv

ARNOLD R. JAGO, SUPERINTENDENT,

London Correctional Institution,

Resnondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

ESPOND NT'S BRI I) OPPO ITION TO PETITIC

The opinions of the United States Court of Appeals for te

Sixth Circuit, of the United States District Court for the Southern

District of Ohio, Eastern Division and of the Ohio Court of Appeals

for the Fifth Judicial District are all unreported. These opinions

of the courts below are reproduced in the appendix atcached to

this brief in opposition.

The decision of the United States District Court for the

Southern District of Ohio, Eastern Division was issued on June 28,

1983. The decision of the United States Court of Appeals for the

Sixth Circuit was issued on July 19, 1984. Jurisdiction is pur-

suant to 28 U.S.C. Section 1254.

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourteenth Amendment to the Uni* J States Constitution

provides in pertinent part:

«++nor shall any State deprive any person of

life, liberty, or property, without due oro-

cess of law.

The Sixth Amendment to the United Stetes Constitution provides

in pertinent part:

In all criminal prosecutions, the accused

shall enjoy the right...to have compulsory

process for obtaining witnesses in his favor....

STATEMENT OF THE CASE

Petitioner was indicted by the Muskingum County Grand Jury.

January Term, 1981, for rape in violation of Ohio Revised Code

Section 2907.02. Petitioner had the assistance of counsel, was

tried before a jury and found guilty as charged. Petitione- was

sentenced to a term of from seven (7) to twenty-five (25) years

imprisonment.

At trial, the following evidence was presented. At approx:

mately 9:30 p.m. on November 14, 1960, Karen Jean “erry wee fi*-

ting in her car in @ parking lot of the tanesvilie aan of Chic

University. While ™s. Merry waited for her automobile to war’ =,

a man wearing a ski mask opened the door and forced her to Tove

across the front seat to the passenger side. Ms. Merry indicated

that this man had the same build and height as petitioner. The

man then drove “ts. Merry's automobile to a secluded spot on «4

rural road. The drive took aporoximately two to five minutes.

Adams Circle, the street where petitioner and nis family lived,

intersects Adams Lane, the rural road. The spot where the assail-

ant parked the automobile was approximately 800 feet from peti-

tioner's apartment. (Tr. 35-39, 45,90).

after bringing the automobile to @ stop the assailant

Lit a cigarette, began to smoke it, and then extinguished it.

According to Ms. Merry, the assailant then turned toward her,

placed a knife to her throat, and told her that he would kill her

£ ghe @id not have intercourse with him. He partially undressed

ms. Merry and then forced her to submit to oral and vaginal sex.

The assailant then exited the automobile and told Ms. Merry to

@rive away. (Tr. 42-45).

The primary evidence that linked petitioner to the crime was

two fingerprints taken from “Ms. Serry’s glasses. Ss. Merry testi-

teed that the assailant had removed the glasses from her face and

placed them in the back seat of the automobile. Ss. Merry also

Stated thet the glasses had not been removed from the back seat

entil the police searched the automobile for evidence. The finger-

prints were identified at the trial as those of petitioner by

houss G. Hupp, @ special agent for the F.8.1. Sr. Supp compared

the fingerprints on the glasses to petitiorer’s fingerprints on

an arrest card. (Tr. 47).

“Ms. Merry was examined at Good Samaritan Medical Center in

Tanesville. The examination revealed the presence of sperm in

her vagina. Her physical condition, mental state, and swollen

vagina were consistent with forced intercourse according to the

@octor who conducted the hospitel exemination. (Tr. 69-50, 79).

The prosecution also introduced into evidence a “Kool”

cigarette which was discovered in the victim's car a week to ten

Gays after the rape. The prosecution produced records from

Muskingum County Jail showing that Smith hed smpked that brand

of cigarette prior to the time the prosecution informed defense

counsel that they intended to introduce a “Kool” cigarette as

evidence. (Tr. 42, 231).

Detective Sergeant Steve Walker, one of the investigating

officers, indicated that he had attempted to question Smith on

humerous occasions and had not been able to discover his wherea-

bouts. Detective Walker also testified that he had searched the

petitioner's apartment and automobile several times after obtain-

ing consent from petitioner's wife and had removed items of

i i i i ea i

personal property from the petitioner's apartment with her consent.

Detective Walker also testified that he went to the Smith apart-

ment almost daily between November 15, 1980, and the early part

of January, 1981, and was unable to contact petitioner, even

though Smith's automobile was always at the residence through

December 26, 1989 (Tr. 91, 104).

On January 28, 196.1, petitioner was arrested in Jacksonville,

Florida. Petitioner was held in Florida until he was extradited

by the State of Ohio in September of 1981. After arraignment in

Muskingum County, petitioner was detained at the Columbus

Correctional Facility. Petitioner was returned to Muskingum

County on November 10, 1981, for his trial which began on

November 12, 1981.

Two witnesses testified for the defense: petitioner and one

Richard Drzewiecki. Drzewiecki stated that he had been contacted

by petitioner concerning a motorcycle that Drzewiecki was sellinc.

Drzewiecki stated that he sold the motorcycle on or about November

18, 1989, and that he had held conversations with petitioner for

a period of one to two weeks prior to that time. (Tr. 200).

Drzewiecki had no specific recollection of petitioner's wheara-

bouts on November 14, 1980. On cross-examination, Drzewiecki

admitted that he and petitioner were incarcerated together while

petitioner was awaiting extradition from Florida to Ohio on the

rape charsce.

Petitioner testified, denying guilt in connection with this

matter. Petition>-r stated that he arrived in Florida in October

of 1989 and stayed there until he was transported back to Ohio

following extradition. Being quite upset by the judge's refusal

to permit him to call two alibi witnesses, petitioner engaged in

several outbursts with the court, prosecutor and spectators while

on the witness stand. Petitioner was claiming that this decision

deprived him of a fair trial. In fact, petitioner became so upset

that subsequent to his direct testimony and while he was being

cross-examined, he requested that he be permitted to remove him-

self from the courtroom. (Tr. 222, 246). Prior to his departure,

the following dialogue took place between the court and the peti-

tioner?:

THE COURT: All right. Over the objection of

the prosecuting attorney and over the recom-

mendation contrary of that the Court is going

to grant that request due to the fact that you

are the defendant in this case and if you wish

to remove yourself from the courtroom, that is

your request and that is in the interest of

justice. If you wish the Court will proceed

with the trial in your absence and so the

defendant may be removed at this time. I might

point out before you leave for the record that

if you should desire to return to the courtroom

at any time with the understanding that you

would cooperate with vour counsel and refrain

from any further outbursts, then the Court would

discuss that with you at that time and I would

probably bring you back. Do you understand what

I am saying?

WHIDREUPON, THE WITNESS NODDED HEAD INDICATING

<tr. 246).

Thereafter, petitioner spent the remainder of the trial in the

Muskingum County Jail until he returned for the reading of the

verdict. (Tr. 222, 246).

Petitioner appealed the judgment of conviction to the Ohio

Court of Appeals for the Fifth Appellate District. On August 3,

1982, the appellate court issued its opinion unanimously affirming

the judgment of conviction. (A26 - A32). Leave to appeal to the

Supreme Court of Ohio was subsequently denied and dismissed on

February 2, 1983 for want of a substantial constitutional question.

(A-24).

On March 16, 1983, petitioner filed a petition for writ of

habeas corpus, pursuant to 28 U.S.C. Section 2254 with the United

States District Court, Southern District of Ohio, Eastern Division.

Three grounds for relief were advanced.? Thereafter, the district

judge denied the writ by opinion and order dated June 23, 1983.

(AS - A23). The decision of the district court was upheld by the

United States Court of Appeals for the Sixth Circuit in an unre-

ported decision issued on July 19, 1984. (Al-A4).

Petitioner is presently incarcerated at the London Correctional

Institution, London, Ohio under the supervision of Respondent,

Arnold R. Jago.

l. The trial court abused its discretion in refusing

to permit Smith to call two (2) witnesses.

2. The trial court erred when it placed conditions

upon Smith's right to return to the courtroom

after Smith indicated that he wished to be

a to voluntarily absent himself from the

r a .

3. The evidence was unlawfully removed and fabricated.

SUMMARY OF ARGUMENT

I.

Petitioner has not been deprived of any constitutional rights

as a result of the trial court imposing sanctions for his failure

to comply with its discovery order. Initially, respondent argues

that state court <vlings on the admissability of evidence do not

raise constitutional issues and are not reviewable in a federal

habeas corpus proceeding. Further, the respondent also argues

that the instant case presents facts whereby the petitioner hac

ample time to aneity his counsel and the prosecution of his inten-

tion to call his mother and sister as witnesses and present p >>..°

bills in support of his alibi defense. Instead, petitioner waited

until the day of trial to notify the court, the prosecutor and his

own counsel his intentions. Further, it should be noted that

petitioner was not precluded from asserting this defense as he

testified and was permitted to have another witness testify as to

his alibi. Under the circumstances of this case, the Court's

pronouncements as to the interests and concerns served by broad

and soctpcceat Wiocovesy would be “sustreted by allowing indi-

viduals to asse~t eleventh hour alibis without limitations. The

unfair surprise and undue burden occasioned by such activity .

warrants the imposition of the sanction of excluding evidence.

The petitioner's deliberate failure to comply with the court's

discovery order justified the imposition of such a sanction and

did not offend any constitutional princinles in this case.

Il.

The trial court has both the right and the duty to maintaiu

control over the conduct of those who appear in the courtroom. To Fe

require an obstreperous defendant to refrain from outbursts and

cooperate in his own defense as a condition of returning to the

courtroom after a voluntary departure did not offend petitioner's

due process rights.

ARGUMENT

I.

A STATE TRIAL COURT RULING EXCLUDING CERTAIN ALIBI

EVIDENCE AS A SANCTION FOR DEFENDANT'S FAILURE TO

COMPLY WITH THE TRIAL COURT'S DISCOVERY ORDER ENCOM-

PASSES A MATTER OF STATE LAW WHICH IS PRECLUDED FROM

REVIEW IN A FEDERAL HABEAS CORPUS PROCEEDING AND FAILS

TO OFFEND THE CONSTITUTIONAL PRINCIPLES OF FUNDAMENTAL

DUE PROCESS AND COMPULSORY PROCESS.

The petitioner's first claim is that he was denied a fair

trial when the trial court refused to permit him to call two wit-

nesses and present phone bills in support of his alibi defense.

This sanction was imposed as a result of petitioner's failure

to comply with the court's discovery order.

In its opinicn, the Southern District summed up the salient

facts relevant to this issue:

After providing full discovery, the state requested

reciprocal discovery from the defense pursuant to

Rule 16(c) of the Ohio Rules of Criminal Procedure.”

2 Rule 16 of the Ohio Rules of Criminal Procedure in pertinent

Part states:

(A) DEMAND FOR DISCOVERY. Upon written request each party

shall forthwith provide the discovery herein allowed. Motions for

discovery shall certify that demand for discovery has been made

and the discovery has not been provided.

(B) DISCLOSURE OF EVIDENCE BY THE PROSECUTING ATTORNEY.

(1) Information Subject to Disclosure.

(e) Witness Names and Addresses; Record. Upon motion

of the defendant, the court shall order the prosecuting

attorney to furnish to the defendant a written list of the

names and addresses of all witnesses whom the prosecuting

attorney intends to call at trial, together with any record

of prior felony convictions of any such witness, which

record is within the knowledge of the prosecuting attorney.

(C) DISCLOSURE OF EVIDENCE BY THE DEFENDANT.

(1) Inf t ect to 1 °

(c) Witness Names and Addresses. If on request or

motion the defendant obtains discovery under subsecticn (B)

(1) (e), the court shall, upon motion of the prosecuting

attorney a list of the names and addresses of the witnesses

he intends to call at the trial.

(footnote continued)

10

The trial court ordered the defense to provide

full discovery by entry filed October 30, 1981.

At approximately 4:90 p.m. on the day prior to

trial, petitioner provided the state with the

name of Richard Drzewiecki, an alibi witness.

On the morning of trial, the state was advised

of the namés of two additional alibi witnesses,

Karen Clapper and Lura Smith. Petitioner's

counsel proferred that Lura Smith, petitioner's

mother, and Karen Clapper, his sister, would

have testified that during October and November,

1980 they each received collect telephone calls

from petitioner in Florida. Petitioner also

offered a telephone record or records supporting

this proferred testimony.

Petitioner’s attorney informed the trial court

that petitioner had withheld these names from him

until the late hours of the day preceding trial.

The trial court permitted Mr. Drzewiecki to testify

but orecluded petitioner from calling Ms. Clapper

or Ms. Smith. The state court of appeals held

that this ruling wae properly within the scope of

the trial court's discretion. Respondent submits

that the trial court's ruling with regard to the

requirements of Rule 16 of the Ohio Rules of

Criminal Procedure is exclusively within the pro-

vince of the state judiciary.

Petitioner contends that he should not have been

held to the technical requirements of the dis-

covery rules with regard to motifyingthe state of

Pootnote 2 continued...

(D) CONTINUING DUTY TO DISCLOSE. If subsequent to compliance

with a request or order pursuant to this rule, and prior to or

curing trial, a party discovers additional matter which would P-ve

been subject to discovery or inspection under the original rec..<st

or order, he shall promptly make such matter available for discoverv

or inspection, or notifv the other party or his attorney or the

court of the existence of the additional matter, in order to allow

the court to modify its previous order, or to allow the other party

to make an appropriate request for additional discovery or inspection.

(E) REGULATION OF DISCOVERY.

(3) Failure to pes: If at any time during the course of

the pr mgs i S Drought to the attention of the court that

a party has failed to comply with this rule or with an order

issued pursuant to this rule, the court may order such party to

permit the discovery or inspection, grant 4 continuance, Or pro-

hibit the party from introducing in evidence the material not

disclosed, or it may make such other order as it deems just under

the circumstances.

(footnote continued)

11

his alibi witnesses. He indicates that he was

incarcerated in Columbus until the day preceding

the trial, which was held in Zanesville. He

asserts that, for this reason, he had insufficicnt

opportunity to raise the matter with counsel.

However, vetitioner's attorney stated on the

record at trial that Ne had discussed the case

with his client on a number of occasions, and

that he had repeatedly asked for the names of

witnesses who could establish a defense. Peti-

tioner refused to cooperate with him. Petitioner

did not mention his mother and sister to defense

counsel until the day before trial.

Petitioner further reasons that by providing the

state with the name of Mr. Drzewiecki, he placed

the state on notice that it would be required to

respond to an alibi defense. Because Ms. Clapper

and Ms. Smith would have also testified as to the

alibi defense, in petitioner's view, the prosecu-

tor would have not been prejudiced or surprised

by the last-minute introduction of new defenses.

Smith v Jago, No. C-2-83-481, Slip. Op. at 6-8 (S.D. Ohio, June

28, 1933.

The allegations contained in vetitioner's brief, if true,

give rise to possible violations of botn the due process clause

of the Fourteenth Amendment and the compulsory process clause

of the Sixth Amendment.

Respondent submits that petitioner's claims are not review-

able in the federal courts and that no constitutional principles

have been violated.

Clearly, the imposition of a sanction for vetitioner's fail-

ure to comply with a state vrocedural rule is a matter of state

law. Matters of state law fall within the purview of the state

Footnote 2 continued...

(F) TIME OF MOTIONS. A defendant shall make his motion for

discovery within twenty-one days after arraignment or seven days

before the date of trial, whichever is earlier, or at such reason-

able time later as the court may permit. The prosecuting attorney

shall make his motion for discovery within seven days after defend-

ant obtains discovery or three days before trial, whichever is

earlier. The motion shall include all relief sought under this

rule. A subsequent motion may be made only upon showing of cause

why such motion would be in the interest of justice.

12

courts and mav not be contested in the federal courts. Bell v

Arn, 536 F. 2d 123 (6th Cir. 1976), Reese v Cardwell, 410 F. 2a

1125 (6th Cir. 1969). As noted in the courts below, the instant

case involves a state court ruling on the admission or exclusion

of evidence which does not generally raise issues of constitu-

tional proportion. Burks v Egeler, 512 F. 2d 221 (6th Cir.),

cert. denied 423 U.S. 937 (1975); Reese v Cardwell, 410 F. 2d

1125 (6th Cir. 1969); Gemmel v Buchkoe, 358 F. 2d 338 (6th Cir.)

cert. denied 385 U.S. 962 (1966). Even assuming arguendo, that

the state court had made a mistake, it is nevertheless recognized

that a “mere error of state law" does not pose a constitutional

question. Engle v Isaac, 456 U.S. 107, 121 n. 21 (1982). Only

if the trial court's evidentiary ruling rendered the trial so

fundamentally unfair as to constitute a denial of federally

secured rights would review be warranted in this matter. Logan

v_Marshall, 680 F. 2d 1121 (6th Cir. 1982); Gillihan v Rodriguez,

521 F. 24 1182 (10th Cir.); Coombs v Tennessee, 530 F. 2d 695

(6th Cir. 1976). Respondent submits that the trial court's

exclusion of some of petitioner's alibi evidence did not render

his trial so fundamentally unfair as to rise to the level of a

deprivation of federal constitutional rights requiring federal

review.

Respondent will now discuss the substantive merits raised

in the above-noted argument. One of the rights allegedly violated

by the crial court's exclusion of alibi witnesses is the right to

present witnesses in one's behalf, which is a fundamental right

made applicable to the states by the Due Process Clause of the

13

Fourteenth Amendment. Chambers v Missisippi, 410 U.S. 284 (1973);

Washington v Texas, 388 U.S. 14 (1967). Further, there is a

potential violation of the compulsory service clause of the Sixth

Amendment. United States v Davis, 639 F. 2d 239 (5th Cir. 1981);

United States v Watson, 669 F. 2d 1374 (llth Cir. 1982). Respond-

ent contends that these rights are not absolute and that the state

may properly condition the admissability of evidence upon discoverv

rules which are designed to further legitimate state interests.

Although never directly ruling on the validity of imposing

sanctions for the failure to comply with discovery orders or rules,

this Court has previously reviewed cases in which sanctions were

imposed for failure to comply with discovery rules or orders.

Warduis v Oregon, 412 U.S. 470 (1973); Williams v Florida, 399

u.S. 78 (1970). In the Williams case, the Court considered the

constitutional validity of a discovery tool called the "notice-

of-alibi rule." The question posed was whether this rule violated

the mandates of the Fifth and Fourteenth Amendments. The rule

provided for liberal and reciprocal discovery by requiring advance

notice of the identity and location of alibi witnesses as well as

advance notice of like information pertaining to witnesses to be

called in rebuttal to the alibi witnesses. In its decision, the

Court approved of this discovery tool stating, “Given the ease,

with which an alibi can be fabricated, the State's interest in

protecting itself against an eleventh hour defense is both obvious

and ligitimate." Id. at 81. Ina discussion of due process, the

Court found ample room for a discovery system "which is designed

to enhance the search for truth in the criminal trial by insuring

both the defendait and the State ample opportunity to investigate

14

certain facts crucial to the determination of guilt or innocence.

Id. at 82.

In the case of Wardius v Oregon, 412 U.S. 479 (1973) the

Court was again confronted with evaluating the constitutional

validity of a discovery rule which provided for the ferretins

out of alibi witnesses in advance of trial. The defendant in

Wardius failed to comply with a discovery rule pertaining to

alibi testimony and as a sanction was prohibited from introducing

any evidence in support of his alibi defense. (Emphasis added).

In its analysis the Court made several pronouncements about the

development of criminal discovery procedures. “ost importantly,

the Court found the rule in question facially invalid because

it was ‘acing in reciprocity between the State and the accused.

Id. at 478. The Court held that: “the Due Process Clause of the

Fourteenth Amendment forbids enforcement of alibi rules unless

reciprocal discovery rights are given to criminal defendants."

Id. at 472. In its discussion the Court also noted that the

growth of such discovery devices as the notice-of-alibi rules was

“salutary” in that it enhances fairness in the advereary system.

The Court reiterated its position taken in the Williams case that

the Due Process Clause does not preclude states from the instituting

of systems designed to produce broad discovery to both sides in an

effort to achieve the goal of fairness. Id. at 474. The Court

emphasized that what the Due Process Clause does speak to in the

criminal discovery area is the balance of forces between accuser

and the accused. Said balance is achieved through reciprocity:

15

“in the absence of a strong showing of state

interests to the contrary, discovery must be a

two way street. The State may not insist that

trials be run as a “seach for truth" so far

as defense witnesses are concerned, while main-

taining “poker game” secrecy for its own wit-

nesses. id. at 476.

The issue of the imposition of sanctions for failure to comply

with discovery rules or orders has also been discussed by several

circuit courts of appeals. As noted in the Southern District's

Opinion, the circuit courts have split onthis issue:

“some holding that the Sixth Amendment forbids

the exclusion of relevant evidence as a sanction

to enforce discovery rules against criminal

defendants, United States v Davis, 639 rr. oon

243 (5th Cir. ; see Un

669 F. 2d 1374, 1383 (llth Cir. ay while

others hold that such sanctions do not violate

the fundamentals of due process United States v

Smith, 524 F. 2d 1288 (p.C. Cir. 1975); Rider v

Crouse, 357 F. 2d 317 (10th Cir. 1966)."

(Appendix at A-19).

The Sixth Circuit has examined the issue of whether a trial

court abused its discretion in eycluding defense alibi testimony

as a sanction for failure to comply with alibi witness disclosure

recuirements of Rule 12.1 of the Federal Rules of Criminal Procedure.

United States v White, 583 F. 2d 899 (6th Cir. 1978). It should

be noted that the constitutionality of the imposition of the sanc-

tion therein pursuant to Rule 12.1 of the Federal Rules of Criminal

Procedure, was not considered because the defendant did not raise

the issue. Id. at 903, n. 3. However, the factors utilized by

the Sixth Circuit in the White case are helpful in analyzing the

instant case because an underlying interest is common to both

cases, i.e., the fundamental right to a fair trial balanced against

the interest of the State in avoiding the unfair surprize of

eleventh hour defenses. The factors to be considered are as follows:

16

(1) the amount of prejudice that resulted from

the failure to disclose, (2) the reason for non-

disclosure, (3) the extent to which the harm

caused by non-disclosure was mitigated by sub-

sequent events, (4) the weight of the properly

admitted evidence supporting the defendant's

guilt, and (5) other relevant factors arising

out of the circumstances of the case.

Id. at 902 (quoting United States v Myers, 550 F. 2d 1036, 1943

(Sth Cir. 1977)).

In the instant case, the trial court invoked a sanction of

excluding some of petitioner's alibi evidence due to petitioner's

failure to comply with its order pursuant to Rule 16 of the Chio

Rules of Criminal Procedure. A review of Rule 16 of the Ohio Rules

of Criminal Procedure reveals that it meets the concerns of this

Court in the Williams and Wardius cases by providing for broad and

reciprocal discovery in am obvious effort to attain the goal of

fairness in criminal proceedings.

The instant case also confronts the Court with a situation

where the petitioner has presented his alibi defense at the eleventh

hour. As noted previously, this Court has recognize the States

interest in protecting itself from the unfair surorise of such

last minute defenses. Further, in apolving the factors utilized

in the White case, the district court below in its opinion most

aptly summed up the situation at hand:

The prosecution in this case was severely pre-

judiced by petitioner's failure to disclose the

names of Ms. Clapper and Ms. Smith until the

morning of trial. Had they been permitted to

testify, the prosecution would have “sen deprived

of any opportunity to interview the witnesses or

investigate their representations. The prosecu-

tion would have been thereby prevented from

developing any meaningful cross-examinaticn.

Perhaps more importantly, this is not a case in

which the evidence was excluded solely as the

result of the failure of petitioner's counsel to

comply with the discovery procedures. See, Cox

v Cardwell, 464 F. 2d 639, 644 (6th Cir. I972).

17

Counsel for petitioner informed the court that the

names of these witnesses had been deliberately

withheld bv petitioner until the day before trial,

in spite of repeated requests by counsel for the

“names of anybody who could help.” Despite peti-

tioner’s assertions to the contrary, his attorne.

had visited him on numerous occasions both in

Columbus and Zanesville, and petitioner had ample

opportunity to discuss this matter with counsel.

In fact, counsel for pvetitioner made numerous

mMutions to the court requesting that he be per-

mitted to withdraw as counsel, for the specific

reason that petitioner had refused to cooperate

and assist in his own defense. The court admenished

petitioner on several occasions regarding his lack

cf cooperation with counsel. Since petitioner

deliberately thwarted his counsel's efforts to

provide him with a fair defense, he cannot now

complain that he has been denied a fair trial due

to an evidentiary ruling which came as a direct

result of his failure to cooperate.

Moreover, the trial court did not exclude all of

the alib: evidence. Petitioner testified in his

own defense, cand “r. Drzewiecki was also permitted

to testify regarding petitioner's alibi. However,

in light of the testimony of the state's witnesses

and the fact that petitioner's fingerprints were

found on the victim's glasses, it is apparent that

the jury did not believe the alibi testimony. It

is dov>tful that the jury would have believed the

alibi testimony cf two additional witnesses who

were both members of petitioner's family. See,

White, supra, 583 F. 2d at 902.

(Appendix at A-ll - A-13).

Based upon the fereqoins discussion, it is evident that in

the instant case there are overriding policy considerations support-

ive of the trial court's imposition of the sanction of excluding

alibi evidence. To quote tne district court below:

The discovery rules were designed specifically to

prevent the occurrence of events such as are pre-

sented by this case. The interest of the state

in avoiding the concoction of last minute alibis

by criminal defendants was compromised in this

case by a deliberate witholding of information

on the part of petitioner. His two alibi witresses

were both family members, se he certainly knew of

their identities and whereabouts. He had ample

opp>°rtunity to notify counsel of his alibi defense

and witnesses. The Criminal Rules were adopted

18

to serve the purpose of ensuring a full and fair

trial for all parties in a criminal action. A

defendant who deliberately attempts to subvert

the policies and provisions of those rules cannot

be heard to complain that his trial was unfair

when such an attempt has been obstructed.

Appendix at A-13).

A rule unenforced by a sanction renders it ineffective. If,

in such a case as this, a sanction pursuant to a discovery rule

cannot be invoked, then all the salutary purposes of the rule

become a nullity. The State will be unfairly exposed to the

burdens of the eleventh hour alibi from which there will be n-

meaningful protection.

Respondent sybmats that there has been no violation of con-

stitutional re SS with regard to this issue. This fact,

coupled with the petiticner’s actions, strongly militates acains*

the Court granting the petition for writ of certiorari on this

issue.

Il.

WHEN A CRIMINAL DEFENDANT ENGAGES IN DISRUPTIVE OUT-

BURSTS AT TRIAL AND VOLUNTARILY REMOVES HIMSELF FROM

THE COURTROOM, THE PLACING OF CONDITIONS UPON THE

DEFENDANT'S RETURN TO THE TRIAL PROCFEDINGS DOES NOT

VIOLATE THE DEFENDANT'S RIGHT TO DUE PROCESS UNDER

THE FOURTEENTH AMENDMENT.

In his second claim, the petitioner states that his due pro-

cess rights were violated when the trial court placed conditions

upon his return to the trial proceedings before he voluntarily

removei himself from the courtroom.

As noted previously, subsequent to the trial court's ruling

disallowing alibi evidence as a sanction, the petitioner became

quite agitated. He engaged in several outbursts with the court,

prosecutor, and spectators while on the witness stand. After testi-

fying on his own behalf and durine his cross-examination, petitioner

askea to be permitted to remove himself from the courtroom. Out

of the presence of the jury, the court granted petitioner's request

over the objection of the prosecuting attorney. The court further

stated that petitioner would probably be allowed to return so long

as he cooperated with his counsel and refrained from any furth r

outbursts.

A fundamental right of due process includes the criminal

Gefendant's right to be present during trial proceedings. Fillippon

v_ Albion Vein Slate, 250 U.S. 76 (1919); Rogers v United States,

422 U.S. 35 (1975). Further, this Court has also deemed that the

Sixth Amendment right of confrontation is so fundamental as to be

part of the “due process of law" guaranteed by the Fourteenth

Amendment to defendants in state criminal proceedings. Faretta v

California, 422 U.S. 806 (1975); Pointer v Texas, 380 U.S. 400

(1965).

20

However, as is the case with a number of other fundamental

rights, the right to be present and the right of confrontation

are not absolute. Initially, such fundamental rights may be waived

by the accused. Illinois v Allen, 397 U.S. 337, 343 (1970) reh.

Genied, 398 U.S. 915 (1970); Snyder v Mass, 291 U.S. 97, 99 (1934).

Further, if the defendant knew or should have known cf his right

to be present, his voluntary absence from the proceedings does

not violate any constitutional right. Tavlor v United States,

414 U.S. 17, 19-20 (1973); Diaz v United States, 223 U.S. 442,

445 (1912). Just as the accused's obstreperous behavior may justify

his removal, there is nothing unconstitutional in conditioning his

return on the requirement that he be willing, “to conduct himself

consistently with the decorum and respect inherent in the concept

of courts and judicial proceedings.” Illinois v Allen, 397 U.S.

at 343. If this is true for one who has been removed then the

same should apply to one who has voluntarily absented himself from

the trial wmroceedinas. The trial court has both the right and

the duty to maintain control over the conduct of those who appear

in the courtroom. To require an obstreperous defendant to refrain

from outbursts and cooperate in his own defense as a condition of

return after a voluntary departure, can hardly be said to have

offended any constitutional principles. Petitioner's claim that

his Due Process rights were violated under the above noted cir-

cumstances simply has no merit and the requested petition for a

writ of certiorari should not be granted.

21

CONCLUSION

WHEREFORE, based upon the foregoing reasons, the petition for

writ of certiorari should be denied.

Respectfully submitted,

ANTHONY J. CELEBREZZE, JR.

Attorney General

ods, (OUS.,

GENE W. HOLLIKER

(Cc l of Record)

Agsistant Attorney General

State Office Tower, 26th Floor

30 East Broad Strect

Columbus, S%hio 43215

. 614/466-5414

ATTORNEYS FOR RESPONDENT

22

—_—~

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Brief in

Opposition to Petitioner has been forwarded to Larry Ravmond Smith

#165-730 and #148-154 through the office of Arnold R. Jago, Supt.,

London Correctional Institution, P.O. Box 69, London, Ohio 43140

via the U.S. Mail this léth day of January, 1985.

/ —

tll! (her —

” JAMES A. CARR

Assistant Attorney General

s

23

Mo. 43-3824 ‘FILED

ert | Gq. 7

POR THE SIXTH CIRCUIT vue Oe

) JOHN P. HEHIMAN, Cler!

LARRY RAYMOND SMITH, ;

Petitioner-Appelant, .

)

v. 4 ORDER

)

ARNOLD R. JAGO, SUPT., } NOT PECOMMINDED FOR FULLTEXT PUBLICATION

Respondent-Appellee. i aes ere Seem com Sate

eure © GmY ™. B ser~es OF othe serves enc ine Court

Fee wore = te oe prominently daplared "hs Cor see « reproduced:

BEFORE: ENGEL and WELLFORD, Circuit Judges; and HORTON,

District Judge*

This Ohio State prisoner appeals from a district court judgment dismissing his

habeas corpus petition filed under 28 U.S.C. $2254. Petitioner attacked his 1981 jury

conviction for rape for which he was sentenced to serve seven to tw ‘y-five years.

Petitioner alleged the following three grounds in his petition: 1) the trial evurt improperly

refused to allow him to call tw. alibi witnesses; 2) the trial court improperly pleced

conditions on his right to return to the courtroom efter he voluntarily absented himself

from the courtroom; and, 3) proofs of his fingerprints were illegally fabricated and

admitted into evidence. The district court dismissed the petition as to the first two

gr unds on the merits and declined review of the third ground.

On appeal, the petitioner argues that admission of the testimony from his alibi

witnesses would not have placed any additional burden on the prosecutor as the court

was already allowing the admission of testimony from another alibi witness which also

showed that petitioner was in Florida and not in Ohio et the time of the rape. Secondly,

petitioner argues thet the trial court should not have placed conditions on his return

to the courtroom because he left the courtroom voluntarily and nct because he hed

©The Honorable Odell Horton, U.S. District Judge for the

Western District of Tennessee, sitting by designation.

Al

No. 83-3524

-2-

exhibited any disruptive behavior. Petitioner does not raise his

third issue on appeal which he had raised in the district court.

Upon review, this court concludes that the district court

Properly dismissed petitioner's habeas petition for the reasons

given by it. The tria! court clearly did not render petitioner's

trial fundamentally unfair by refusing to permit the petitioner

to call his mother and sister as two additional alibi witnesses

(neither was proffered to be able to testify as to his whereabouts

on the day or night of the rape). Cf. Logan v. Marshall, 660 F.2d

1121, 1123 (6th Cir. 1982); Moore v. Newell, 548 F.26 671, 672

(6th Cir.), cert. denied, 431 U.S. 971 (1977). Application cf

the factors which this court enumerated in its discussion on an

almost identical issue raised in United States v. White, 563 F.2d

899, 902 (6th Cir. 1978), shows no abuse of discretion nor a denial

of fundamental fairness in the trial court's ruling. The disclosure

of the two additional names on the day of trial would not have

provided the state with sufficient time to interview the witnesses

or to investigate their representations. Furthermore, petitioner's

trial counsel informed the court that the names had been deliberately

withheld by petitioner until late in the day before the trial.

This occurred despite repeated requests by counsel for names of

anybody who could help his cause. (See App. at 165). Wotwith-

standing the exclusion of the testimony, the alibi defense was

placed into the record for the jury to consider by another witness

who appeared as being more objective than petitioner's mother and

A2

Mo. 83-3524

oj-

Sister. Final*,, the evidence of guilt was substantial. Petitioner's

home was close to the scene of the crime. Petitioner smoked the

same brand of the cigarette found in the victim's car, and, most

damaging, petitioner's fingerprints were found on the victim's

eyeglasses, which were removed from the victim during the course

of the rape.

Regarding petitioner's secondissue, it is observed, as the

Gistrict court so noted, that the right to be present during trial

proceedings is not absolute and may be waived by the defendant.

Illinois v. Allen, 397 U.S. 337, 343, reh. denied, 398 U.S. 915

(1970); Snyder v. Massachusetts, 291 U.S. 97, 98 (1934). And,

as the Supreme Court so observed in Illinois v. Allen, supra,

397 U.S. at 343, there is nothing unconstitutional in the procedure

of allowing the defendant to return to the courtroom “as soon as

the defendant is willing to conduct himself consistently with the

Gecorum and respect inherent in the concept of courts and judicial

proceedings.” Clearly, it is a natural and reasonable extension

of this principle to apply it in a case where the defendant volun-

tarily absents himself from the courtroom following outbursts

during the trial, thereby obviating the need to establish obstreperous

behavior. The conditions placed on petitioner's re-_urn in this

case were not unreasonable, arbitrary or capricious. The decisions

rendered in Evans v. United States, 284 F.2d 393 (6th Cir. 1960)

and in Cross v. United States, 325 F.2d 629 (D.C. Cir. 1963),

A3

No. 83-3524

-4-

relied upon by petitioner, are clearly distinguishable on their

facts; and the decision rendered in Pearson v. United States, 325

F.2d 625 (D.C. Cir. 1963), rather than supporting petitioner's

arguments, supports the trial court's decision to grant petitioner's

reguest to leave after the court discussed the matter with all

concerned. (The petitioner absented himself over the objections

of the prosecutor and his counsel's advice.)

Finally, petitioner is deemed to have abandoned his third

issue raised in the district court. David v. Maggio, 706 F.2d

568, 571 (5th Cir. 1983); United States v. Bruscino, 662 F.2d 450,

462 (7th Cir. 1981), cert. denied, 103 S. Ct. 1205 and 1235 (1983);

McGraw v. United Ass'n of Journeymen and Apprentices, 341 F.24

705, 710 (6th Cir. 1965). The search and seizure claim, moreover,

clearly is unreviewable in this habeas action. Riley v. Gray,

674 F.2d 522 (6th Cir.), cert. denied, 103 S. Ct. 266 (1982).

For these reasons, this panel unanimously agrees that oral

ergument is not necessary in this appeal. Rule 34(a), Federal

Rules of Appellate Procedure. The district court's judgment is,

accordingly, affirmed pursuant to Rule 9(d)3, Rules of the Sixth

Circuit.

ENTERED BY ORDER OF THE COURT

A4

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

FILED

JUN 2 81983

LARRY R. SMITH

KENNETH J. TIURPHY, Clerk

Petitioner COLUMBUS, OZIO

vs. Civil Action C-2-83-481

ARNOLD R. JAGO, Supt.

Respondent

OPINION AND ORDER

Petitioner, a state prisoner, brings this action for a

it of habeas corpus under the provisions of 28 U.S.C. $2254.

This matter is before the Court on the petition, return of writ,

transcript of proceedings in State v. Larry Raymond Smith, No.

81-3 (Muskingham Cty. C.F. Ct. Nov. i981), and the briefs and

exhibits of the parties.

Petitioner was indicted by the January, 1981 Term

Muskingum County, Ohio Grand Jury for one count of rape in viola-

tion of §2907.02, Ohio Revised Code. Petitioner was tried to a

jury which found him guilty as charged. On November 16, 1981

petitioner was sentenced to a term of seven (7) to twenty-five

(25) years imprisonment. — is te eae. vw

Petitioner directly appealed his conviction to the

Court of Appeals for Muskingum County, Ohio alleging the follow-

ing assignments of error:

A5

1. The trial court abused its discretion in

refusing to permit the defendant to call

two witnesses.

2. The court erred when it placed conditions

upon the defendant's right to return to

the courtroom after the defendant indicated

that he wished to be allowed to voluntarily

absent himself from the trial.

On August 3, 1982 the Court of Appeals overruled petitioner's

assignments of error and affirmed the judgment of the trial

court.

Thereafter, petitioner sought review in the Supreme

Court of Ohio. On February 2, 1983, that Court overruled peti-

tioner's motion for leave to appeal and sua sponte dismissed the

appeal for want of a substantial constitutional question.

Petitioner alleges that he is in the custody of respon-

dent in violation of the Constitution of the United States in

that:

1. The trial court abused its discretion in

refusing to permit the defendant to call

two witnesses.

2. The court erred when it placed conditions

upon the defendant's right to return to

the courtroom after the defendant indicated

that he wished to be allowed to voluntarily

absent himself from the trial.

3. The evidence was unlawfully removed and

fabricated.

Petitioner's third ground for relief has never been

presented to the Ohio courts. A state prisoner is required to

exhaust all available state judicial remedies before he may seek

redress by way of petition for federal habeas corpus. Picard v.

A6

Connor, 404 0.S. 270, 275 (1971). If his constitutional claims

have not been fairly presented by any procedure available in the

state courts, his claims have not been exhausted. 28 U.S.C.

$2254 (b), (c).

Petitioner explains that the third claim was not

presented in the Ohio courts because his attorney refused to do

so. Respondent contends that petitioner still has available the

remedy of post-conviction relief pursuant to §2953.21, Ohio

Revised Code. Consequently, respondent asserts the petition must

be dismissed in its entirety for failure to exhaust state

judicial remedies as required by 28 U.S.C. §2254(b),(c).

Petitioner's factual allegations concerning his third

ground for relief are as follows:

The primary evidence that linked the defendant

to the crime were two fingerprints taken from

the victim's glasses. The fingerprints were

removed from the glasses, and the glasses was

{sic] returned the [sic] victim the next day.

As evidenced by the trial record, it is petitioner's position

that his fingerprints, which were allegedly taken from the

victim's glasses, were not taken from those glasses at all.

Rather, petitioner asserts that the fingerprints were removed

from his personal objects, which he ccntends were illegally

removed from his home by the sheriff's department.

= Under Ohio law, constitutional issues cannot be consi-

dered in post-conviction proceedings under §2953.21 of the

Revised Code where they have already been or could have been

fully litigated, either during trial or on direct appeal. Keener

A?

v. Ridenour, $94 F.26 $81, 586 (6th Cir. 1979); State v. Perry,

10 Ohio St. 24 175, 180 (1967); State v. Roberts, 1 Ohio St. 34

36, 39 (1982). Petitioner was aware of his evidentiary claim

with respect to the fingerprints at the time of the trial. This

is evidenced by the fact that he file¢ a motion to suppress that

evidence, which was overruled by the trial court. Thus, although

he had an opportunity to fully litigate the issue both at trial

and on direct appeal, petitioner failed to pursue the matter.

The claim is therefore not cognizable in a post-conviction

proceeding under $2953.21 of the Revised Code. Id.

It is not disputed by respondent that petitioner is

precluded from raising the claim in any other state court

proceedings. Accordingly, the Ccurt concludes that petitioner

has exhausted all available state remedies with respect to his

third ground for relief as required by 26 U.S.C. $2254 (b), (c).

I

The facts of the case, as presented at trial, are as

follows:

On the evening of November 14, 1980 Karen Merry was

attending an accounting class at Ohio University in Zanesvilie.

After the class was dismissed at 9:00 p.m , she remained in the

building to discuss some questions with her professor. At

approximately 9:30, she left the building and proceeded to her

car, which was parked in an edjacent lot. As she sat in the car

warming the motor up, a man approached from behind. He opened

A&

the driver's door and directed Ms. Merry to move over to the

passenger's side of the car.

The man, who was wearing a ski mask, drove the car to

Adams Circle. There he pulled off the road into a small turn-

off. He stopped the car some ten to twenty yards from the street

and sat smoking a cigarette. When Ms. Merry attempted to leave

the car, the man placed a knife at her throat and told her that

he would kill her if she did not have sexual relations with him.

As the man undressed Ms. Merry, he removed her glasses and threw

them into the back seat of the car. The man then sexually

assaulted Ms. Merry and raped her. ie subsequently left the car,

directing Ms. Merry how to drive away from the area so as to

avoid a ditch. Within one-half hour of the assault, the rape was

reported to the police. ,

Throughout their investigation, the Police treated

petitioner as a suspect. He lived within 800 yards of Adams

Circle, the site of the assault. He was known by police to own a

ski mask of the kind described by Ms. Merry. Further, his

height, weight, and body build were similar to the description

Ms. Merry gave of her assailant.

Petitioner's name was sent, along with lifts of the

fingerprints obtained from Ms. Merry's glasses, to the FBI in

Washington, . C. There the fingerprints were positively identi-

fied as those of petitioner. He was subsequently arrested in

Jacksonville, Florida.

At trial, the state's case consisted primarily of Ms.

Merry's testimony, along with other physical evidence cor.necting

Ag

petitioner to the crime: the close proximity of his home to the

scene of the rape, the fact that petitioner smoked the same brand

of cigarette which was later found in Ms. Merry’s car, and the

identification of his fingerprints which were found on Ms.

Merry's glasses.

Petitioner's slibi defense was that he was in Florida

from the end of September, 1980 until his arrest there in

January, 1981. Richard Drzewiecki testified that he met peti-

tioner in Jacksonville, Florida @uring late October, 1980. He

saw him at least 3 times a week through the date of the rape. He

had no specific recollection of petitioner's whereabouts on

November 14, 1980. On cross-examination, Mr. Drzewiecki admitted

that he and petitioner were incarcerated together while petition-

er was awaiting extradition from Florida to Ohio on the rape

charge.

II

Pe*+itioner’s first claim is that the trial court abused

its discretion in refusing to permit him to call two witnesses at

trial, depriving him of his right to fair trial and to fully

Gevelop his defense.

After providing full discovery, the state requested

reciprocal discovery from the defense pursuant to Rule léic) of

the Ohio Rules of Criminal Procedure. The trial court ordered

Alo

the defense to provide full discovery by entry filed October 30,

1981. At approximately 4:00 p.m. on the day prior to trial,

petitioner provided the state with the name of Richard

Drzewiecki, an alibi witness.

On the morning or trial, the state was advised of the

names cf two additional alibi witnesses, Karen Clapper and Lura

Smith. Petitioner's counsel proferred that Lura Smith, petition-

er’'s mother, and Karen Clapper, his sister, wosld have testified

that during October and November, 1960 they each received collect

telephone calls from petitioner in Florida. Petitioner also

offered a telephone record or records supporting this proferred

testimony.

Petitioner's attorney informed the trial court that

petitioner had withheld these names from him until the late hours

of the day preceding trial. The trial court permitted Mr.

Drzewiecki to testify, but precluded petitioner from calling Ms.

Clapper or Ms. Smith. The state court of appeals held that this

ruling was properly within the scope of the trial court's

@iscretion. Respondent submits that the trial court's ruling

with regard to the requirements of Rule 16 of the Ohio Rules of

Criminal Procedure is exclusively within the province of the

state judiciary.

Petitioner contends that he should not have been held

to the technical requirements of the discovery rules with regard

to notifying the state of his alibi witnesses. We indicates that

he was incarcerated in Columbus until the day preceding the

trial, which was held in Zanesville. He asserts that, for this

reason, he had insufficient opportunity to reise the matter with

counsel. However, petitioner's attorney state on the record at

trial that he had discussed the case with his client on e number

of occasions, and that he had repeatedly asked for the names of

witnesses who could establish a defense. Petitioner refused to

cooperate with him. Petitioner did not mention his mother and

sister to defense counsel until the day before trial.

Petitioner further reasons that by providing the state

with the name of Mr. Drzewiecki, he placed the state on notice

that it would be required to respond to an alibi defense.

Because Ms. Clapper and Ms. Smith would have also testified as to

the alibi defense, in petitioner's view, the prosecutor wo ld

have not been prejudiced or surprised by the last-minute intro-~

duction of new defenses. |

In a habeas proceeding, a United States District Court

does not exercise direct review over state court decisions.

Rather, the scope of federal habeas review is confined to errors

which are of constitutional dimension. Bell v. Arn, 536 F.2d

123, 128 (6th Cir. 1976). Generally, state court ruli

This text is long and has been trimmed here. Open the source document for the complete record.