# Record and brief — Smith v. Jago > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1271%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1985 - **Citation:** 470 U.S. 1060 ## Text 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. 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, 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. 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- 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 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 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 >..° 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..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 rulings on the admission or exclusion of evidence do not raise constitutional issues. Burks v. Egeler, 512 F.2d 221, 223 (6th Cir. 1975), cert. denied, 423 U.S. 937 (1975); Reese v. Caldwell, 410 F.2d 1125, 1126 (6th Cir. 1969); Gemmel v. Buchkoe, 358 F.2d 338, 340 (6th Cir. 1966), cert. denied, 385 U.S. 962 (1966). However, a trial court evidentiary ruling may render the t-ial so fundament- ally unfair as to constitute a denial of federal rights. Logan v. Marshall, 680 F.2d 1121, 1123 (6th Cir. 1982); llihan v. Al2 Rodriquez, $51 F.2¢ 11862, 1191-2 (10th Cir. 1977); Bell v. Arn, supra, 536 F.2¢ at 125. The right to present witnesses in one's behalf is a fundamental right made 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 U.S. 14 (1967). However, the right is not absolute; the state may properly condition the admissibility of evidence upon rules which are designed to further legitimate state interests. The Supreme Court has recognized that states have «a legitimate interest in preventing ea criminal defendant from con- cocting a last-minute alibi. Wardius v. Oregon, 412 U.S. 470, 474-475 (1973); Williams v. Florida, 399 U.S. 78, 81 (1970). Fowever, state procedurel requirements must conform to the limits of the Constitution. The issue this Court must consider is whether petitioner's trial was rendered fundamentally unfair by the trial court's decision to exclude the testimony of his alibi witnesses as a sanction for failure to comply with the court's discovery order pursuant to Rule 16(c). The question of whether the exclusion of relevant evi- dence, such as that provided by an alibi witness, as a sanction for non-compliance with discovery rules violates constitutional principles has been expressly left open by the Supreme Court. Wardius, supra, 412 U.S. at 63 mn. 14; Williams, supra, 399 U.S. at 472 mn. 4. The circvit courts have split on the issue, some holding that the Sixth Amendment forbids the exclusion of relevant evidence as a sanction to enforce discovery rules against criminal defendants, United Stetes v. Davis, 639 F.2¢ 239, 243 (Sth Cir. 1981); see, United States v. Watson, 669 F.2¢ 1374, 1383 (11th Cir. 1982), while others hold that such sanc- tions do not violate the fundamentals of due process. United States v. Smith, 524 F.24 1288 (D.C. Cir. 1975); Rider v. Crouse, 357 F.24 317 (10th Cir. 1966). In United States v. White, 583 F.3d 899 (6th Cir. 1978), the Sixth Circuit examined the issue of whether a trial court abused its discretion in excluding defense alibi testimony to sanction non-compliance with the alibi witness disclosure provisions of Rule 12.1, Fed. R. Crim. P. There the defendant first offered the testimony of alibi witnesses after both the prosecution and the defense had rested their cases. While observing that the trial court has the discretion to rule on the admissibility of evidence, the Court noted that the interest of the defendant in having a fair trial must be carefully balanced against the interest of avoiding surprise and delays. The Court enumerated several factors to consider in striking this balance: (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- t events, (4) the weight of the rly admitted evidence supporting the defe t's guilt, and (5) other relevant factors arising out of the circumstances of the case. $#3 F.2¢ at 902, quoting from United States v. Myers, 550 F.2d 1036, 1043 (Sth Cir. 1977). The Court of Appeals held that the trial court did not abuse its discretion under Rule 12.1 in excluding the defense's alibi witnesses. The constitutionality 10 Al4 of Rule 12.1 wes not considered because the defendant did not contend that the compulsory notice provision dGenied him due process or a fair trial. 583 F.2@ et 901, n. 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 a useful framework for analysis of petitioner's constitutional claim. They are particularly relevant in that the underlying interests are identical in each instance: the fundamental right to a fair trial balanced against the interest of the state in avoiding the unfair surprise of eleventh-hour alibi defenses. Consideration of these factors leads us to conclude that the trial court's evidentiary ruling did not deprive petitioner of a fair trial. The prosecution in this case was severely prejudiced 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 been deprived of any opportu- nity to interview the witnesses or investigate their representa- tions. The prosecution would have been thereby prevented from developing any meaningful cross-examination. 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.24 639, 644 (6th Cir. 1972). Counsel for petitioner informed the court that 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 a 2 | Al5 “names of anybody who could help.” Despite petitioner's assertions to the contrary, his ettorney hed visited him on numerous occasions both in Columbus end tanesville, and pet‘tioner had ample opportunity to discuss this matter with counsel. In fact, counsel for petitioner made numerous motions to the court requesting that he be permitted to withdraw as counsel, for the specific reason that petitioner hed refused to cooperate and assist in his own defense. The court admonished petitioner on several occasions regarding his leck of 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 4 direct result of his failure to cooperate. Moreover, the trial court did not exclude all of the alibi evidy ce. Petitioner testified in his own defense, and Mr.Oreewie \ was also permitted to testify regarding petition- er’'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 beliewe the alibi testimony. It is doubtful that the jury would have believed the alibi testimony of two additional witnesses who were both members f petitioner's family. See, White. supra, 583 F.2¢ at 902. We agree with the Fifth Circwit thet the exclusion in a criminal case of relevant, probative, and otherwise admissible 12 Alé evidence solely for non-compliance with a discovery rule is an extreme sanction. United States v. Davis, 639 F.2d 239, 243 (Sth Cir. 1981). However, we believe that there are overriding policy considerations supportive of the trial court's determination in this case. The discovery rules were designed specifically to prevent the occurrence of events such as are presented 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 withholding of information on the part of petitioner. His two alibi witnesses were both family members, so he certainly knew of their identities and whereabouts. He had ample opportunity to notify counsel of his alibi defense and witnesses. The Criminal Rules were adopted to serve the purpcse 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 heerd to complain that his trial was unfair when such an attempt has been obstructed. For the reasons discussed above, the Court concludes that petitioner was not denied a fair trial when the trial court excluded the testimony of his two alibi witnesses as a sanction for his delibcrate failure to comply with its discovery order. II! Petitioner's second claim for relief is that the trial court erred when it placed restrictions on his right to return to the courtroom after he requested that he be allowed to voluntari- 1g Al? ly absent himself from the trial. Petitioner became quite agitated after the trial court refused to permit him to cali his two alibi witnesses. See dis- cussion, infra. He engaged in several ocutbursts with the court, prosecutor and spectators while on the witness stand. Subsequent to his direct testimony and during his cross-examination, peti- tioner requested that he be permitted to remove himself from the courtroom. Out of the presence of the jury, the following dialogue took place between the court and petitioner: THE COURT: All right. Over the objection of the prosecuting attorney and over the recorn- mendation contrary of that the Court is going to grant that sequest 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 under- standing that you would cooperate with your 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? WHEREUPON, THE WITNESS NODDED HEAD INDICATING YES. (Transcript at 246). Petitioner contends that the Court should not have placed these conditions on his return in light of the fact that no Finding was made that petitioner failed to cooperate with his attorney or that he was engaging in outbursts. 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 .o be present during trial proceedings is essential to the fundamentals of due process: In Pillippon v. Albion Vein Slate, 250 U.S. 16 (1919), the Court observed "that the orderiy conduct of a trial by jury, essential to the proper protection of the right to be heard, entitles the parties who attend for the purpose to be present in person or by counsel at all proceedings from the time the jury is impaneled until it is discharged after rendering the 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); FParetta v. California, 422 U.S. 806 (1975). However, the right to be present during trial proceed- ings is not absolrte, 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 of his right to be present, his voluntary absence from che proceedings presents no constitutional violation. Taylor v. United States, 414 U.S. 17, 19-20 (1973); Diaz v. United States, 442, 445 (1912). Al9 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 @isrupting 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. — * . . . . "V6 A20 The United States Supreme Court held in Stone v. ll, 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 obtained 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 opportunity to raise a fourth amendment claim. ... Second, the Court sust determine whether presentation of the claim was in fact frustrated because of the failure of that mechanisn. Riley v. Gray, 674 F.2d 522, 526 (6th Cir. 1982). The Court of Appeals further held in Riley v. Gray, supra, 674 F.2d at 526 that the Ohio procedural mechanism for considering Fourth Amendment claims provides an adequate oppor- tunity for review of those claims. Therefore, our inquiry turns to whether presentation 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° A2l 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. Petitione='s counsel cross-examined each witness at length regarding the origin of the fingerprints. The 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 the 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. \ . & ~-s 7 a r > « - - 2 2 . - / United States District Judge ¢ 18 Wileirn =. Vv. P Arnold R Jago, Sgt. O Jury Verdict. This action came before the Court and with the judicial officer named above pres: ibhuntounmenet@sieteaneee Presiding @ Decision by Court. This action came to wis! «+ hesring before the Court with the judge (magistrate) onal suove presiding The issues have been tried or heard and s decision hes been rendered. ——_— IT IS ORDERED AND ADJUDGED —_——— The petition is without merit and is denied. This action is dismissed Judgment is for the respondent. - ; RECEIVED OrviCE OF Tee FTFRAL LM 58h yy EETON Ji: “Se = 5 —_ zx => = = =a .* 72 Py - z: ° >s a: , - + ~ ¢? 2 8 = ‘= 3 3 SS = Gate — | ee 7 : June 28, 1983 A23 BEST AVAILARLE COPY TEE sT4TE OF O10, un UY reaw | City of Cotmmaus. Po wie.__Pebeuary 2, 198? PES Stats OF CE a ; -__Fepruary 2.3903 __ :@ of Chic, Ne.__.0272290 City of Columbus. J To wit ¢ fas. § , aa Appellee, | APPEAL FROM THE COURT OF ome : Wo._82-229°__ - ) APPEALS aggetses. MOTION FOR LEAVE TO APPEAL : | ~ FROM THE COURT OF APPEALS “= Cae fe ounty “ry Raynoné Smith, fer MeSKINGU" _— Appellant. aggetiant. : This cause, kere on appeal as of right from the Court of Appeals for MUSKINGUM County, was considered in the manner prescribed by law, and, no motion to dismiss such appeal having deen filed, the Court sua sponte dismisses the appeal for the reason that no substantia! constitutional question exists herein It ts ordered by the Court that this motion is overruled. CosTs: It is further ordered that @ copy of this entry be certified t Motion Fee, $20.00, paid by ettidevie of poverty , the Clerk of the Court of Appeals for. MUSKINGUM...___County for entry. I, James Wm. Kelly , Clerk of the Supreme Court of Ohio, certify that the foregoing entry was correctly copied from the Journal of this Court. . I, James Wm. Kelly , Clerk of the Supreme Court of Ohio, certify that the Witness my hand and the seal of the Court foregoing entry wes correctly copied from the Journal of this Cours ; this.._...day of. = Witness my hand and the seal of the Court Clerk this..__.day of 30 = Deputy | Clerk in 59-25 — Deputy aa -a#23 _—-— we) f , ; IN THE COURT OF APPEALS FOR MUSKINCUM COUNTY. owio . pisTRicT FIFTH APPELLATE WILLICAN, J. STATE OF OHIO, t {0DG EM oer E. Henderson, P. J. Plaintift-Appeliwe =e ye The defendant was convicted in the Muskingum County Court of — Common Pleas by « jury of Rape, R. C. Section 2907.02. The trial court LARRY RAYMOND SMITH, =: OPIN _ thereupon sentenced him to 7 to 25 years. Me appeals, sssigning two Defencant-Appellant: =. No, O1-CAni8 es errors: Decided: 2 lt. THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING TO PERMIT THE DEFENDANT TO CALL TWO WITNESSES. APPEARANCES: Il, THE COURT ERRED WHEN IT PLACED CON- DITIONS UPON THE DEFENDANT'S RIGHT TO RE- TURN TO THE COURTROOM AFTER THE DETEN- DANT INDICATED THAT ME WISHED TO BE AL- .. ALLEN ne a ETORNEY LOWED TO VOLUNTARILY ASSENT HIMSELF FROM wusajycum COUNTY, OHIO THE TRIAL. 28 Nerth Fourth Street lenesviile, OM 43701 ‘. ATTORNEY FOR PLAIN TIF F-APPELLEE 4 RF phate 5 CO., L.P.A. fe) Witness names end addresses. If on STUBSBINS, -° or motion the defendant obtains discovery 923 wiltery ender subsection (8)(1)(e), (whieh was done ih this P.O = = eaves case) the cour - = , prosecuting tenceville. attorney, order ¢ defendant to furnish the pro- —qKqQqQUK Sc \\|\ssss== , conference with your teacher and you proceeded out through the side door to where you parked your car, is that right? A Un-huh. Q Now what did you do at that point? A Well, I got in and -- well, I unlocked the door and got in and I started up the car and it took a long time for it to warm up. Cc Was it cold like it was again -- A It was kind of a chilly evening. Q -- in November? A Un-huh. Q And was the door of your car closed at that time? A Yes. Q And you were revving your motor up, trying to get it heated up? A Un-huh. Q What happened at that time? A Well, I was about ready to put it in gear and Grive out and a guy came up from behind me and opened my car ioor and told me to scoot over because he had to get out of the area. Q Now do you know what direction he came from? A He came somewhere behind my car ‘cause I always backed in towards -- well, it was backed in towards the teacher's lot facing the back ead of the parking lot so (35) AjSs he came up somewhere behind the parking lot. ‘ 2 Q So your car was facing -- was your car facing 3 | this direction? | 4 | A No, the other way. sie Your car faced Newark Road? 6 A Hun-uh. 7 Q And so your car did not face the Newark Road? Ly A No, it faced the back of the parking lot. 9! @ Okay. Well, so you were looking this direction? Wiha Yes. nig Ané where did the man come from? 12 : Bh From behind my car. 13 | Q to he came from somewhere in this direction? 14 B Un-huh. 6%} @ Now how did you know that he was serious about 16 | that, I mean, did he just -- 17 A He put the -- like he put his fist up against my 1s shoulder and it felt like it had a pointed edge to it. 19 Q It more or less stuck your shoulder? 2, A Un-huh. 21 Q So then did he then assume a position behind your 2 wheel? a | a Yes, he told me to scoot over and he got behind a | the wheel. | And then what 4id you do? 1a - A36 ee i ez f:ekRket 8B &B &B Sk KR EF BK ' SS Sr Si 2S KES ES i eee Ss OCT —._ = eae -% A Then he came out the far end of the parking lot and drove to Adams Lane and went down Adams Lane. Q Now -- and then you were in the passenger's side -- Ab : Un-huh. 2 o is that right? A (WITNESS NODDED HEAD INDICATING YES). Q Now can you draw where you -- where the man drove to from which exit and take us to where you live. You lived on Adams Lane, I believe, is that right? A We went out that way -- that exit. Q Is that theone that’s closest to the bank? A Yes, there's the bank right there and we drove down Adams Liane. Right here is where we were. Q You are indicating a spot approximately on the corner of Adams Lane and Newark Roac that’s back in the woods a little bit? Yes, it sets back in the woods. Yes, we went down and went over the little bridge. Past Armco Park -- do you know where that is? Yes. o r+ OF F OO F So the scene of this alleged incident, can you mark that with an x? WHEPEUPON, THE WITNESS CC™“PLIED f 37 ) =) Sao eee A3? —E————EEOw I think right in here someplace. WHEREUPON, THE WITNTSS RESUMED THE WITNESS STAND. And that’s between a street down at Adams Circle, which is not to be confused with Adams Lane and Somers Street, is that right? Yes. Now @id you go directly owt of that parking lot? Did he take you directly out of that lot? Yes -- well, we stcoped a little bit to let some cars through because some classes were getting out about > =e ee See SO ee See ees 2S ewe wes Se * the sare time Q Now @id he ask you anything on the way to this | epot on Adams Lane? t He asked me my name, age and where I lived. r) What did you tell him? A I told his my name was Karen and I was eighteen years old and I was from McConnelsvilile. @ Okay. That wasn't true, was it? A No. Q | Gun <> op gun ase Gunbiies eth Gfuse Gene tennest you had lived on Adams Lane for three months, hadn't you? A Yes. 6 And had you traveled that direction in the past? (38) | ais ee LSS SS ee a Yes. My mom was in the hospital that day and I took my ded out through that way to get to the hospital -- out to Bethesda. r*) Had you traveled it before? _ Yes -~- well, my eye doctor is also on Maple Avenue so I go out that way to get my glasses straightened up. Q So you knew your way from the spot of the incident back to the dormitory because you travel that way, is thet correct? A Yes. Q Wow what -- if you have an estimate or if you can recall, I realize it's been @ year ago, how long did it take you to get from that parking lot through that area? A Probably about anywhere from two to five minutes. And,.of course, when you passed the dormitory you made no reference to that's where you lived or anything, aid you? a No. . Q Sc we are talking now you are leaving about 9:30, you might have been three minutes, five minutes later on ~~ that's just approximate, is that correct? A Yes. Q Mow upon arriving at this -- now is this somewhat off the road? on Yes, it was set beck from the road. (39) 439 | ae ee eee eee ee Well, he turned the car off and turned off the lights and he said that everything would be 411 over in gust © Gen Ghauase enh be 860 w © chgnestte end Gams than time I was about ready to get out the door to see if, you know, I could run and he put out the cigarette and he told me not to. He put a knife to my throat and told me no. Q You say he put a knife to your throat? a Un-huh. Q Now how long did he smoke this cigarette? a Not too long at all. It was just like he lit it up aed put it back. Q He told you whet again? b Me told me not to get out of the car that he wanted to have intercourse with me. Or whet? Or else he would kill me. About 6 inches long, hed like a dark handle. Q A Q And what did his knife look like? A Q Now how did you know it was « knife? A Because it hed 4 point and he told me it was a Q And it was at your throat, right? A Yes. Q . An@, of course, is thet his exact words or is / that the substence of what he said? (42) aA4o0 —— eee And then what, if anything, did he want you to do? Then he wanted me to lay down in the seat. And then what ¢@i¢d he do next? Then he proceeded to undress me; he undid my louse. Did he kiss you or touch you or -- Yes. And where did he do thet? On my breasts. Did he touch any other place at that time? Yes. What did he touch? My lower part. Your vagina? Yes. So at this point did you know where he had the knife at this point? a No, I didn't know what he did with it. Q And is he still in the driver's side and you are still in the passenger's side? a No, I'm laying across the seat and he's on the passenger's side. It's sort of like -- A Yes. (49) Af’ a ee oe Ss rw? —eE Ss, eae SS Se SS Se” Then how much of your clothes 4i¢ he remove? Just my left leg of my pants. You mean he took those clear down, is thet right? Yes. and 414 he remove anythin else from your body? We removed my left shoe. Your left shoe? Un-huh. Did he remove anything from your upper body? Yes, he pulled up my bre. Did you have glasses on that might like you heve Yes, 1 had the same ones on and he took then off i them in the beck seat. At what point did he do that? When he told me to lay down. He just -- how @id he do that, just -- Be just reached up and threw them in the beck seat. And then proceeded to disrobe you,is that correct? Yes. How 4id he take his own clothes off or how éi¢ Well, he just pulled down his pants. And at that point did he have intercourse with you ER SSR RR RB A. * he ~ Ls er seeseaeoeeseesesessessesesesesekt & ee few Seer 2 See eee Did he heave you submit to orel sex? Yes, he id. Bow how long 41d this -- approximete tine frome -- 414 this lest from the time you arrived af the scene ‘til it was over? 1°é say about « half hour. Q Now id -~ how was he dressed when he originally approseched you in the parking iot? A He hed on blee-jeans or some kind of dark pair of pants end he hed on « mask. Q Now would you describe that mask to the jury’ a Oh, it wes kind of like « dark color ané it just head one hole for the eyes, kind of an oblong. ie) And 414 he leave thet on throughout the incident? a Yes. Q Wheat other descriptions other than his clothes or physical description 40 you recall? a Well, he was kind of tall, about 5°6, 5°11 and he wes pretty well thin -- he was slender. 6 Now I assume thet there's « point in time -- f guess you said approximately s helf hour leter thet this stopped? 145) 175 ast | 5 8s & & & GS ee ee ——"-2ere & © ae OF Oe ee ee ee And what 4ié he do then? wel’, be told me to get Gressed and so he got dressed too and he asked me if I knew how to get out and I told him yes, I 4id and so I went to go and I started the — I turned left and be yelled ot me and said, "weit", seid, “There's « Gitch thet way; Gon"t go that way” and so I backed up and turned right then end went out. io} What 41d he Go with the knife when he -- I sssume he got cut of the car? A Yes. ) And thet’s when he told you about the ditch? a Yes, when I started to drive away. ‘ What 4i¢ he Go with the mnife? A Me stuck it ender his are and held it. G hed it wes pitch Gerk at thet point, is that right? a Yes. G And you had no knowledge of @ ditch, éid you? A I @i@n"t see any. It looked like the quickest way to the roed to ae. i Row at the point where this cape of several rapes — ecourred, was it -- it was dark ané about how fer off the ‘ roe wes it? Mot too far. I°@ say shout 16, 20 yerds. And wes it cowered in the way of beshes? \ 1) A There's -- well, it was in tne fall of the year -- 2 | like it looked like it hadn't been mowed; it was just tall 3 | weeds. . ‘4 | I'll show you these items marked for purposes of 5 ; identification as B-1l, B-2, B-3 through B-9 and ask if you 6 can identify the picture there? 1 A (WITNESS NODDED HEAD INDICATING YES). These are g | all the car. deen 9 | Q It's a "69 -- mw) A Buick Skylark. ll Q I show you Exhibit B-7 and ask you what's in the 1 | rear floor? 7 13 A It's a rug I use for my feet and there's a flashlight “ and my glasses. 1s @ How long had you had that car? 6 A Oh, I got it in either August or September the year 17 before. I had it for just roughly a year. 18 Q I will show you what's been marked for purposes 9 ‘of identification as State's Exhibit D. Can you identify 20 what that picture is? 2 A Those are my glasses. 2 Q Now when's the last time you saw those glasses? - A When they hit -- when they flew through the air os to the back seat. si” The show Dallas was on. 20 Q So then you went to the hospital? 2 A Yes.-- well, we went to the scene first. The deputy 2 | took me to the scene and then I showed him about where it was 2 and then we went to the hospital. 24 Q So you did that that same night? - [ B Yes. (49) r A A46 a2 eee emai iia cee ay aga aR th i Q And if you will, what did you do at the hospital 2 | then? 3 A I went through all kinds of tests. 4 | Q Now were your parents called at that time? 5 ; A When I got back they called my parents from in the 6 : dorm and they met me at the hospital. 7 | 9 And how long were you at the hospital? , a) A About three, four hours. ) Q So you went on then past midnight -- 10 | A Yes. nl Q -- is that right? 12 | A (WITNESS NODDED HEAD INDICATING YES). 13 Q Now have you ever seen or heard of Larry Raymond “4 Smith before in your life? 15 ! A No. 6 Q And of course, you are certainly not his spouse, 17 is that correct? 1B A No. 19 Q And all these things occurred in Muskingum County, 20 Ohio, isn't that correct? 21 A Yes. 2 Q Now you indicated that he did smoke a cigarette. - Did you ever know what he did with that cigarette? A I have no idea. I didn't know whether he threw it out or what he did with it. (50) A4? ae eee aS eee lM oa ~ : ee A Document G-1 is the one that I fill out, the routine emergency room record that we kept at Good Samaritan Hospital and G-2 is a part of a kit that we routinely use in rape cases explaining all of the findings and information that we obtain Guring our examination. Q And upon looking at the Exhibit G-1, does that refresh your memory in any way about Karen Merry? A Yes. She presented to the emergency room. I did not see her initially; I was told that she was back in one of the examining rooms and that she stated that she had been raped. When I first saw her she was very tearful, quite upset and had indicated that she had been forced to have oral and vaginal or general sex at knife point. Q And what procedure did you take at that time? A We do a routine examination with the patient completely unclothed except for a hospital gown and we do examination of the whole body, all extreme surfaces and all of the body cavities and we essentially performed that examination. Q Pardon me; I didn't hear you. A We performed the examination ae to this. Q And what were your findings? A She did have some evidence of body trauma in that she had an abbrasion of the -- I believe it was the right shoulder and had some lineal scratches, a type of injury that a scrape (78) A4é 2, pee 8B &é eB S&F Fe FF GE KE e es = =—- across a firm surface such as concrete or blacktop or the ground. She also had a very tender left wrist but the wrist aia not seem to be swollen and did have its full range of motion. There was no bruising that I could see otherwise on the body. On her pelvic examination she did have @ rather swollen, edematous introitus, which would be the lips of the vagina were red and swollen. The vaginal vault had @ thick, cloudy fluid, whitish in color and that was aspirated and a wet prep of it revealed many mobile sperm present. The cervix otherwise was normal and the bimanual examination, which is the enaninetion we palpate the pelvis area, showed no other evidence of injury or pathology. The oral cavity was normal to my examination as I recall from the records that I could see. And that this was pretty much the pertinent findings. The rest of the examination was normal. Q Now on Exhibit G-1 and G-2, can you identify your signature on there as being your signature -- A Yes, they 4re. Q -- on both documents? A Un-huh. Q And how long have you been licensed to practice A I've been licensed now two and a half years. Q Taking all the procedures that you just testified (79) “ A4ay 1/ A _ It would take on # Grive less than probably two 1 cleared by his alibi witnesses, we did attempt to intensify t s 2 the search for Larry Raymond Smith. 3/° If you were walking -- : 3 Q And were you able to interview Larry Paytond ‘ A It would be approximately five minutes, four to | 4) Smith? 5 five minutes. ; \ . 5, A No, sir, we were never able to ever find his s @ Now how do you know it's 800 feet from that scene? ’ 6 at home or at any other location. ? a Okay. The scale miles on this map is 1 inch equals 7 Q Did you go to the home? e 200 feet and if one would measure from his front door to the era Yes, sir, I went to the home alasost daily and also 9 scene of the crime it is 4 inches. So that, of course, would 9 to the home of his parents and also to the home of one brother 10 be 800 feet in a straight line and we measured both by an te) almost daily between the 15th of November, 1980 to the early u | automobile and by walking the two-tenths of a mile in a u pert of January 1981. 2. © and then it would take approximately four to five minutes | 2z'o Was his wife and family always there? wu! to walk it and approximately two minutes or so to drive ? oi] B They were always there until the early part of 1981. - ' it from the crime scene to his fronc door step. : lu Q What about the family Yehicle, was it there? Q 800 feet, how many football fields is that? | =| ~) A The family vehicle was there between the 15th of s A It would be approximately two and a half football ye | November, 1981 and December the 26th, 1980 -- both years were - fields. There is @ football stadium here which one can see. in 1980. It would be approximately two of these football stadiums - sw, @ So you mean November 15th -- would you say that » : and a half possibly. 19 | again, please? » Q Why don’t you take the stand. 25) A From November 14th, 1980 until December the 26th ; WHEREUPON, THE WITNESS RESUMED . : 21 1980 the vehicle was always there at the residence. THE WITNESS STAND. s. 2i@ What kind of vehicle was it? Q Well, at that point did you attempt to search then : aa Pe It was a Ford Galaxie 500, dark red in color with for Larry Raymond Smith? . oe 23 | the license number 6392TwW. , a Yes, sir. After the first suspect was relatively ai 0) 2% Q And how ¢id you know it was always there? (91) h = 7 ASO BS “Cr EEE 1 | Stop made f the vehicle but I’m no sete what they -- the wn al es ah batty gustaia, Gn allis Goal } Pacman , before that that he had been out to my place to see it. ito CS Bo you know if any items were removed from the ale ‘ When you Say he had been out to see it, ere you . eas? a | referring to Mr. Smith? sf Te my Knowledge, other than what I've already ste = ‘ S#id pursuant to the search warrant to my knowledge no itens P e and is it your testimony thet while you were 7 | were ever removed from the Smith vehicle. , attempting to sell this motorcycle when you resided in si @ I believe earlier in your testimony -- your * Floride that Mr. Smith showed some interest in thet o | Sirect testimony -- you indicated thet you became aware . torcycle and -- wo ' thet Larry Smith had access -- immediate access, as 1 recall » a Yes, he 4id4. mn | ene costing, 00 © obs ened. ok = -- wes with you to discuss the motorcycle st some wi A Yes, sir, I did. 2 | time prior to November the 18th? oi @ At whet time 41g you find this out? ats mee. . oi 4 I became aware that Larry Raymond Smith hed ate and how many times was he with you? 15 | immediate access to @ ski mask on September the 25th, 1980. al @ He was with me to see the bike -- it had to be si? And how 4i4 you find this out? g | three tines, at least three times, and then I talked to wi® On September the 26th, 1960, myself and Het. ‘a him other times in the past becouse he used to come in yy | “tty Paul went to the Smith residence to talk with Le: = the ber for « drink and I saw him, you know, countless te | MayRond Smith. He was not at home and we 414 intervie =» | tines price to thet. wp | Bie wite and che 4i6 sign © search werent to scorch her ele Can you tell the jury approximately when the a | “tO vehicle which was parked in front. The 1969 of f-red . first time was that Mr. Smith expressed some interest tn m | "Ot@ bearing license number 6392TW. And in thet search = | the bine gw | Weernesth the driver's side of the front seat was an off- ar | I believe it would have been right sround the as brown, Gerk in color ski mask with one oblong hole for . Pi — , , Somewhere around there, ist of Iré. ~~ eam aoe ‘e 4 And would that have been in 19807 (200) . é. -%, -—_ aS weeesesesessesesessess sks & & SG = eee .29e" ee re eT Yes, And where did this conversation take place? Theat wes at the 2 é& FR Bar. When, if you can recall, @id the second or third meeting with regard to this bike take place? & Like I say, that was a1] within thet period of time up until I'd say the 18th when I sold it. After I sold it I never even brought the subject back up to him. I had seen him after that too and then I hed to go -- I hed left because I had to go up to Pennsylvania at my residence there and then I ended up moving to New York right after that. Q Did you have occasion to see fr. Smith after the 18th of November? a Yes, it was right around that time. It waen't too much after. It would have been maybe ~~ I think I moved in the 2iset or 22nd beck in New York but I had seen hin all the way up to then because that's when I saw him when I had my bike, things like that. Q When you ere saying 2ist and 22nd, are you speaking of November? A Of November, right. Q Do yor have any memory of the meeting nearest the time (os the sale of the bike when you spoke with Mr. Smith about it? (201) — . I'd sey it would have been about the Sth or 10th, somewhere eround in thet time end then 3 think § might have seen him somewhere like maybe the 15th or something at the bar because he didn't come owt to see it because the other | gentleman had give me some money for down payment on it. - So the last time thet Mr. Smith spoke to you about the motorcycle may heve been the Sth or 10th of November -- a , Right. Q ~~ is that whet you seid? And em I correct that you are now testifying that you saw Mr. Smith and spoke to Mr. Smith sometime between the Sth end 10th of November and the 18th of Noverber? — a Yes. Q How often 4id that happen? a Tt would not be every day. You know, like even way back to exect dates I couldn't say for sure but he would come in at least three times @ week -- of that week and weually in the earlier pert of the day and then he would stop back in the evening. ’ ° te the individual that you know to be Larry Raymond Smith sitting in the court room? a Yes, he is. Q And could you point hie ovt to us, please? ae He's sitting et the teble ~~ sitting over there. A202) asa ASS THE CowRT: The Court will . everrule the objection. This is eross-examination ~~ this is proper cross-examination. @. How then you were together Guring thet tine, isn’t that correct? A Part of it, yes. And where were you? In Jacksonville, Florida. Were you in jail together? MP. GRANAM: Objection, your Honor. Q Well, why don't you answer that? THE COURT: Objection. ° In other worés, you were in jail together Curing those months and were friends, is thet right? a Wot really. I know him from personally out on the street prior to thet. I hed run into him while I wes inceccerated and he hed moved to that -~ thet he hed charges pending on him, thet I 4id not know. He came to me in the period of time I knew hie before. At that tine I gave him ay name and eddress and told hie if he needed me to contact me. . So the sate wan thet you hed this deal with the moto~cycle with in November fortuitously or by chence you (209) lie - 2 A SE SS se ee EL O—=*FO8RerrEIL a Re bought cars et an suction and I would oo ~ith him and I would Grive thes beck. There wes five or six of ws thet 4i¢ it. tow were you paid? te paid ws every day. Were you paid hourly? Yes. Bow such were you paid? $2.00 -~ $2.00 an hour. Row 4i¢ you -~ wes your work reculer’ it was pretty requler, yes. Row sany Gays & week would you work? Five, six. Bo you know anything about Karen Merry? Mo, I Gon*t know ber. Referring to this Giegram, State's Exhibit A, which was Giscussed yesterday, are you familiar with the area -- a Tes. @ ~~ that this represents? a Yes. ) Rave you ever lived in this ares? a Yes. coy Could you for the jury ~~ could you point cet if you can find your residence on here ~~ where thet is? (222) as? LF o-« i MR. SMITH: That's what you tell me, I can't i a Yes, I heve. t case but let -- :'@ Woolé it be correct te sey thet when you were 3 3 : put my up yet you . | 3 THE COURT: Let me inquire of you. If | incarcerated in cer foil om this pest safecracking charge ; i » I would have adhered to rules of procedure ‘ from 2+)-78 to &-28 thet you ordered 18) pecks of Kools? ~ hs | 5 I would not have permitted Mr. Drzewiecki to ‘ a tT hewe oo ides, So. I ° . 6: testify in this case. sie Bet you would hewe so reason te Goubt that because 1 MR. SMITH: I understand. ; you were smoking Eools et thet time? Py 7 THE COURT: But I did permit him to testify ea tT Gen"t reserber t/t. 9 and so that is the sitwatior. That's the way si °@ You Gon"t remember whether you were or not? 10 it's going to be. If we have another outburst mia QSITMESS SHOOK BEAD INDICATING BOD). ; ' i ; we will finish your proceeding in this case uj e@ aed thet ~~ would it alee be eefeir to say that | , without having resent. ~ since you came back in Septenber -- from 2-81 to 9-20-81 12 you Pp 3 MR. SMITH: If I'm not allowed to call v thet you ordered from the commissary 12 packs of Kools? ' os | my witnesses, then I'll leave court. “., * I don"t remenber. = fest got « carton of Camels ' THE COURT: You will remain right | * couple days age. Se you hewe thet Gowe on your list? ~s ‘ here -- '¢ well, that’s «© poiet = would bite to make. In 16 = MR. SMITH: He'll take me back. preperetion for this trial I sent te mr. Graham a notice 7 - THE COURT: -- ard sit next to your = chat I wes going to ese & Bool cigarette as part of the ve counsel and cooperate with your counsel. aa case end since thet time poe indicete thet you have been 1s | w a. » | MR. GRAHAM: Your Honor, -- m | ordered Camels. é ; “s THE COURT: Let me say one more word -- . t 4i4, yes. Sr. Graber sewer told me that. ny st) f I don't ,now whether I told you this; I doubt ° You can"t recall in "78 whether you were @ S| S f it -- as I said to you yesterday I don't have cigarette Bool smoter of sot? =| bad any preferences in this thing one way or a (HTTHESS SHOOK HEAD TNDECATING §O). No, sir. . 26 | ad i" another. I didn't know you prior to the @ e te thet © comeiceary recor? es you know it? sj idan L ied i ave AS9 & 2. 8 B&F 8&8 & S&S S a SaaS ss a Ea eS. == == tame yOu appeared in my court to enter a plea. I didn’t have any prior knowledge of you other than rumor. I don't let rumor “influence me. But I would just say to you that this -- I have to be the judge and make the rulings in this case. Now if they're wrong, as I said to you, nobody will try to correct me. The objec cionswill be made legally, the rulings will be made and if they're wrong then they're wrong but this case is going to proceed and it’s certainly in your best interest to present to the jury in this case a picture of someone who is interested and cooperative. MR. SMITH: How can I do that? You block THE COURT: And you have done so so far. The Court, as I say, hopes that you continue to do that. MR. SMITH: I can't do that; you block THE COURT: We will recess -- this Court will recess. MR. BOOTH: All right. WHEREUPON, THE TRIAL WAS IN RECESS FROM 2:35 P.M. TO 2:50 P.M. MR. BOOTH: Be seated. (243) A60 ene: pei _— se os _ ee ee eee WHEREUPON, THE JURY WA> NOT PRESENT DURING THE FOLLOWING PROCEEDING. THE COURT: It is my understanding that you want to make a request to the Court at this time to withdraw from the case, is that correct? MR. SMITH: Yes. THE COURT: That has been communicated to me that you voluntarily wish to remove yourself from the courtroom. Are there any statements concerning that from the prosecutor? MR. WOLFE: May it please the Court, I wish to continue to cross-examine the defendant and since he's had the opportunity to take the stand and to present his case on direct examination, certainly that hampers our ability to attack his credibility. THE COURT: Mr. Graham, do you have anything you would like to Say? MR. GRAHAM: Yes, your Honor. If it please the Court, my client has indicated to me that it ishis desire to testify no longer. He is angry and upset at the rulings of the Court as the [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1271%3A0. Public record. Not legal advice.