Petition for Writ of Certiorari — Parrott v. Ohio

- SUPREME ane OF THE UNITED STATES

oom , October Term, 1971

ee

DENNIS WILLIAM PARROTT, ,

Petitioner,

= al

THE STATE OF OHIO, | '

Respondent.

- PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF OHIO.

ea lh a

MORRIS G. SULLIVAN ~) ©

S410 Atlas Bank Building

Cincinnati, Ohio 45202

' _ Attorney for. Petitioner

COURT INDEX PRESS, INC. — Law Printers — 809 Walnut Street, Cinzinnati, Ohio $5202

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_INDEX

Petition hor Writ of Certiorari. wens ean ; piers - on .

Statement MP ani EER EEE TERETE ety ee

Questions Presented for Review .. omens See eas 2

Statemen’ of the Case....... ea he ANC Pere 2-5:

Reasons for Granting the Writ mare Ane Ee oe 5:10

Conclusion easier eens errr ere STP error ee 1]

"Appendix ae a | | ¢ a |

Opinion of bee. sa si Ls atinds Cee. 5... 26.5 ED _. g&

oe Ke | nes Se/ bf

TABLE -OF AUTHORITIES | ee,

Arsenault V. Massachusetts, 393 US 5 .....:. vines 7,9

Blué v. U.S., 342 F 2nd 894 (D.C. Cir. 1964) ...... 6.

- Brookart v. Janis, 884 US] ..... 060. p. eee e 10

eke v. “Maxwell, 29 OO 2nd O71 pacing. eee

“Clark v, Maxwell,.29 OO 2nd‘197°.... 40.00... 4

Coleman v. Alabama, 399 US 1 ..........2, 56, 7, 8, 9

Dancy v. U.S., 361 F 2nd 75 (D.C. Cir. 1966) ...... 6 -

Freeman v. Maxwell, 29 OO 2nd 234 piaameeswe ae par: |

Gideon v. Wainwright, 373 US 335 ......... aheeen ee

Hamilton v. Alabama, 368 US 52 ...... Sree tf

* John Adams, Petitioner v. State of Illinois, za — - ai

'- Respondent, Docket No. 70-5038 .......... a

Johnson v. Zerbst, 304 US 358 ........ reer rT 10

Kitchen v. Smith, 28 L Ed2nd 519 ......... eee

‘Linkletter v. Walker,-381 US 618 .......... Geass 8,9

Ross v. Sirica, D.C. Cir. 1957, No: 20535 sibel _ 3

Se Ee SUED ake oianas is tthe hee ceken 6

i. aes

> : = Page —

State v. Laskey, 21-OS 2nd 187 ....... oer rae ae 3

State v. Puckett, 31 OO 2nd 124 ................ a

State v. Tims, 38-OO 2nd 328 ...............2... 9

White v. Maryland, 373 US 359 ........ SELES 6, 7-8

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In . the

| SUPREME COURT OF THE UNITED STATES.

. October Term, is 1

No.

°

_ DENNIS WILLIAM i en

; : Petitioner,

ee i

THE STATE OF OHIO,

* .. Respondent:

. PETITION FOR, WRIT OF CERTIORARI TO THE

SUPREME COURTOF OHIO

# ~'

. The Petitioner, Dennis William..Parrott, ‘prays that a

writ of certiorari issue to review the judgment and opinion

of the Supreme Court of — entered-on July 14, 1971.

—

- OPINION BELOW

* The Opinion of the Supreime Court of Ohio reported in

‘27 Ohio iol ak 205, appears in the. Appendix hereto. .

JURISDICTION.

The judgment of the Supreme Court of Ohio was ; entered

on July 14; 1971. A timely Motion for Rehearing was

- filed July 23, 1971, and was denied on September 15, 1971.

This Petition was filed within ninety (90) days of that

date. Thts Court’s jurisdiction is invoked under 28 USC,

Section 1257(3). * | :

.8 ‘ * * ye

a ‘

/

2

~ QUESTIONS PRESENTED FOR REVIEW

1. Whether . Coléman v. Alabama, 399 US 1, will be

given .effect to this: case while on direct’ review or is retro-—

active and/or applicable to. this cause (where prior-to trial:

the Defendant (Petitioner herein) moved to suppress the |

evidence and-objected to thé actions of @ police officer in /

the Butler County; Ohio, Sheriff's Office that. prevented »

Defendant’s retained Counsel from conferring with Defen-

dant, and prevented and obstructed his Counsel from rep- -

resenting him at his preliminary hearing and denied De-

. fendant his right to Counsel at the preliminary hearing.. —

2. Whether the actions of the Trial Court denied. De- —

fendant equal protection of the law-as guaranteed in the

Fourteenth Amendment to the Constitution of the United.

States when it refused Defendant's offered exhibit of the

hospital report’ of the only physical examination of the

complaining witness in a case involving the crime of forcible

rape in violation of riiaetas? 2905.01, Ohio Revised Code.

‘STATEMENT OF THE CASE

This cause came on-to be heard in the Common Pleas —

Court of Butler County, Ohio,.on the Indictment by the

Grand Jury of Butler County, dated October 20, 1969,

_ charging the Defendanit- Appellant with Forcible Rape and | , |

the plea of not guilty entered thereto at arraignment. on

‘October 30, 1969,. ae

A Motion to Suppress the Evidence for the reason that

Defendant was denied Counsel at the preliminary hearing

in the Butler County Court was filed in the trial Court in,

this cause on October 30, 1969, and ¢ erruled on December -

3, 1969. : adi

On December 10, 1969, trial was begun | to a jury-in the:

- Common Pleas Court of Butler County, Ohio, which ter-

minated on December 11, 1969, on the a by the

eee ee Se tek

jury that the"Defendant was guilty of Assault with Intent

to Rape. . On December 12, 1969, Notice of A peal was

filed ‘and: refiled on December 15, 1969, and appeal was-

~ heard in the Court of Appeals for the First Appellate Dis-

~ trict of Ohio. From the decision of the Court of Appeals

afirming the Court of Common Pleas of Butler County,

this cause was appealed to the Supreme Court of Ohio. .

- Motion for leave to appeal was granted by the, Supreme

“Court: of Ohio on November 4, 1970. “On July 14, 197 fi

the Supreme Court of Ohio affirmed -the decision of thé

‘Court of Appeals for Butler County, Ohio. A Motion

for rehearing was made on July 23, 1971, by Defendant-

~ Appellant (Petitioner herein) , which Motion was denied

on September 15, 1971. 4 ee

Prior to trial on the merits, as has been pointed out, evi-

- dence was,produced by Defendant in support of his Mo- .

tion to Suppress the evidence, and his objections made that

he was denied the right, of Counsel at the- preliminary hear-’

ing of the charge made herein. ete cee

_ That Motion was heard on December 2, 1969, by the-

‘Common Pleas Court of. Butler County. During. those

proceedings, Louis J. Hendricks, Jr., an attorney at Law °

with offices at 4557 Montgomery Road in Cincinnati;.tes-

tified that on May. 26, 1969, he was counsel for Dennis

. Parrott and. appeared with him at a preliminary. hearing in

‘Cheviot, Hamilton County, Ohio, before the Municipal

Court of the County of Hamilton on-an armed robbery

‘charge (which has since’ been successfully disposed: of) .

He stated that. on that evehing at about 9:00 P.M., after

the preliminary ‘hearing in Cheviot, Detective Bowman, a

member of the /Hamilton County Sheriff's office, | arrested

Parrett in Cheviot, in Hendricks’ presence; that he was

“informed that Parrott would be taken to Butler County,

Ohio, to be formally charged and allowed to make bail;

“

\

4

and that tor thatereason he didn’t accompany his client

but, instead, went to. his home in Mariemont,a suburb of -

Cincinnati, Ohio. He then testified that he. learned by

means of phone calls to the Sheriff's office in Butler Coun-.

ty, Ohio, that his client had been taken to Oxtord, Ohio,

in Butler County, for prelimimary hearing.

He further testified dtat about 10:30 PLM., “May 26,

1969, he called the County Court in Oxford, Ohio, and

talked to a person who identified himself as Detective Casta-

tor, Who was then and at the’ time of trial was a member

of the Butler County, Ohio, Sheriff's Office... He stated that

he asked tor the opportanity to talk to his client and was

informed by Detective Castator tha his client's case was

in progress. Ile testiticd that he tried 20 niinutes later,

but the line was busy. He testified that he made no etlort

to go to Oxtord because he couldn't have driven trom his

home to Oxtord, Ohio in time for the hearing.

He testitted that he tried again 30 or 40 nimutes Liter

to telephone his client. A different person answered the

phone, informed him that Detective Castator was.in the

Court room on the Parrott case and couldn't come to the

phone. Atabout 1.00 A.M. on May 27th, 1969, he finally

got through to Detective Castator and asked him why he

or his chent had not been advised that his client was to

have. a preliminary hearing, Detective Castgtor informed

him that Parrott had been advised of it a week previously,

bus was so busy shooting off his mouth that, he didn't under-

‘stand ‘it. He admitied that Defendant had not been. ar-

rested prior to May 26, 1969 and gave no explanation as to

how Defendant could have known vot a preliminary hearing

the week previous. It is obvious that at about 10:30 PLM.

when Mr. Hendricks called to speak to his client, his ¢li-

ent’s case was not being heard as reported by Detective

Castator, since the record shows that his case was not lteard

until after midnight.

5

_ Mr. Hendricks testified that on this hearing he had no

further professional or financial interest “in this case.

Defendant-Appellant testified that the first time he-was

presented with a Warrait for his arrest was on the evening

gl the 26th of May, 1969, by Detective Bowman, in the

presence of his attorney, Mr. Hendricks. He stated that

he was not informed that a preliminary hearing would take

place, only that he would be taken to Oxford, Ohio to

post bond. He testified that when he arrived in Oxford, ~

_ Ohio and learned of the hearing he asked Detective Casta-

tor to use the phone twice in order ta contact his attorney,

~ but that he was not permitted to do so. His case was called

about 12:15 A.M. on May 27, 1969. When the “Judge

asked him whether or not he had a lawyer, he told hitn

that he did. ‘The Judge asked him if his attorney knew

he was going go be at the preliminary hearing, to which

Parrott replied, “No.”.

Atter a short break, the Judge asked him what he was

going to do, he told the Judge that he didn’t know what

to db, and the hearing proceeded. The Defendant did not

plead; the Court entered a plea of not guilty for him.

Defendant also testified that no other member of the Bar

was present in his behalf. .

- REASONS FOR GRANTING. THE WRIT

_ The Decision below deprived Petitioner of his Con-

a Right 10 Counsel at a preliminary hearing in

this alleged felony for the alleged criminal charge of Forci-

ble Rape as guaranteed him by the Sixth and Fourteenth

Amendments to the Constitution of the United States, and

is contrary to the decision of the Supreme Court of the

United States in Coleman y. Alabama, 399 US 1.

‘The Supreme Court of Ohio, in its decision in. this case,

clearly conceded that under Coleman v. Alabama, 399 US

ie

1, a preliminary hearing in a criminal case in Ohio is a

“critical stage” of the proceeding and that Defendant is en- .

titled to be represented by Counsel. The Supreme Court

of Ohio held, however, that Coleman v. Alabama (supra)

was not retroactive in its effect as to this Defendant. |

In Hamilton v. Alabama, 368 US 52, this Court held

that a Defendant in a felony charge has a right to Counsel.

In.that case, this Court said: :

“Only the presence of comnaal could have enabled

“this accused to know all the defenses available to him

and plead. mmhelligentiy. "

This Court reiterated. that language and stood on that

decision again in White v. Maryland, 373 US 59..

The rationale in Hamilton v. Alabama (supra) does not

rest on a showing of prejudice.. In the White case, this

Court said: .

“Whatever may be the normal function of. the ‘pre-

liminary hearing’ under Maryland law, it was in this

case as ‘critical’ a state as arraignment under Alabama

Law. For petitioner entered on a plea before the

Magistrate and that plea was taken at a time when

he had no counsel.”

_ One of the most important aspects of the preliminary

_ hearing is its value for purposes of discovery. Gideon v.

Wainwright, 373 US 335. Recognition of the Defendant's

discovery interest has been recognized in an important

- line of cases in the District of Columbia which also held

that denial of ceriain preliminary hearing rights are not

cured by supervening indictment. See: Blue v. US, 342 .

F 2nd 894 (D.C. Cir. 1964); Dancy v. US, 361 F 2nd 75

(D.C, Cir. 1966) ; Ross v. Sirica, D.C. Cir. 1957 No. 20535

(decided January 23, 1967) ; rehearing denied with opinion

March 24, 1967.

7

Despite these early warnings, the Supreme Court of Ohio

persisted in its holding that a Defendant in a criminai case is .

not entitled to have Counsel in a preliminary. hearing

because it is not a critical state of the proceeding. State

v. Puckett, 31 OO 2nd 124; Clark v. Maxwell, 29 OO 2nd

74: Smith-v. Maxwell, 29 OO 2nd 197; Freeman v. Max-

| _ 29 OO 2nd 234; Bussy v. Maxwell, 29 OO 2nd 271.

Coleman v. Alabama (supra) was preceded by those fed-

eral cases cited.above.

In State v. Laskey, 21 OS 2nd 187, the present Chief

Justice of the Supreme Court of Ohio (then a Justice) ac-

cused that Court of consistently refusing to follow, or seek- |

ing to avoid Federal decisions in criminal cases. ‘The Ohio

Supreme Court in the instant case acknow ledged the Cole-

man case but held it not retroactive to this Defendant who

was on direct appeal. ;

In Arsenault v: Massachusetts, 393 US 5, the Defendant

was arrested in February, 1955, and the next day given a

” probable cause hearing unaided by counsel, on the charges

of murder and attempted robbery. Six days later, again un-

aided by counsel, he-entered a plea of not guilty at ar-

raignment. At trial, represented by counsel, he was cross;

examined by the prosecutor concerning his prior statements

at preliminary hearing andthe prosecutor introduced De-

fendant’s plea of guilty for the purpose of refreshing his

memory. The jury ‘returned a verdict of guilty and im-

posed a sentence of death. (which was commuted to life

imprisonment). His appeal to the Massachusetts Supreme

Judicial Court was rejected.

_ In 1966 petitioner sought post conviction relief from the

Massachusetts Supreme Judicial Court on the basis of the

supervening decision in White v. Maryland, 373 US 359,.

which was denied. The case came to the Supreme Court of.

the United States on a. petition for a Writ of Certiorari,_____... -

8

"The Supreme Court of the United States said:

“White v. Maryland is indistinguishable i in principle .

from the present case and we hold that it is applicable _

-here although it was not decided until after the ar-

raignment and trial in the instant case.’

“The right to counsel at trial (Gideon v. Wainright,

373. US 335); on appeal (Douglas v. California, 373

US 353) ; and at other ‘critical stages’ of the criminat——

proceedings (Hamitton v. Alabama, 368 US 32) have

all been made retroactive since the ‘denia! of the right

must invariably deny a fair trial’. See Stoval v. Denno |.

388+US- 293, 297, 18 L_ Fd 2nd 1199, 1203, 87 S Ct

1967.” (Emphasis Supplied)

“Reversed.”

In Kitchen v. Smith, 28 L Ed 2nd 519 (dated May 1,

1971), this Court held that (1) Gideon v. Wainright,

372 US 335, is fully retroactive; (2) the right of the ac-

cused to counsel was not dependent on a request; (3) the

accused ‘proved that hegwas without counsel due to his

indigency In the instant case, Petitioner was represented

by private ceunsel, whose attempts to reach and/or repre- .

sent the Defendant were denied the ‘Defendant by the

actions of the police officer in question.

In Linkletter v. Walker, 381 US 618, it was said a a

change in law will be given effect while a case is on direct

review. Coleman v. Alabama (supra) was argued on No- .

vember19, 1969 in the Supreme Court of the United States.

In this case, Defendant's Motion to Suppress the Evidence. .~

._ and his objections were niade on October 30, 1969. That

Motion was overruled on December 3, 1969. Before his -

appeal was heard and decided ‘in the Court of Appeals for

Butler County, Ohio, Coleman v. Alabama (supra) was

decided by the Supreme Court of the United States.

Fs

Petitioner points out that i in John dive, Petitioner Vv.

State of Illinois, Respondent, Docket No. 70-5038, this.

Court granted certiorari on question 2 on March.8, 1971:

Question 2 is almost identical to question 1 in this case.

Petitioner urges that. the facts in.this case, in the. light

of Coleman v. Alabama, 399 US°1: Arsenault v. Massa-

chusetts, 393 US 5; Kitchens v. Smith, 28 L Ed 2nd 519; .

Linkletter v. Walker, 881 US 618 and the action of this |

Court granting certiorari in Adams, Petitioner v. State of

Illinois, Respondent, would justify the grant of certiorari

~ to review the judgment below.

2. “The Dicisien below upholding the Trial Court’s .

refusal to accept Defendant's offered Exhibit of a hospital ©

record containing the results of a physical examination of

the complaining witness made almost immediately after the

alleged rape Captives Defendant the equal protection of

the law.

State v. Tims, 38 OO 2nd 328, aeeren the prosecu-

tion from’ using such record under circumstances which

would violate Defendant’ s right to face the witnesses against

him. It does not prevent Defendant from using such a

record since Defendant may waive his constitutional right

to face the person who prepared the record.

The State attempted to offer as an Exhibit, the rec-

-ord of the physical examination-of the prosecuting witness,

made almost. immediately after the alleged rape, by a

local hospital, through the custodian of the,records. After

objection by Defense, it was refused on the basis of State -

v. Tims, 38 OO 2nd 328. ,

After the State produced its witnesses, Dr. Dean Barber,

not the doctor who actually made the phy sical examination,

to establish that penetration could have occurred (by

ow

10

means of a_hyopthetical question), the conterit: of

this hospital record became vital to the defense.

It contains the following statement: ‘“Hivmen intact,”

Remember that the witness, Elizabeth “2. saated that the

Defendant said that “he wouldn’t h-r: «and that she

“didn’t know” if she had been raped. An ‘intact hymen

is certainly. good evidence that she wasn:-raped. Defen-

dant doesn’t know of any better evidence, particularly when.

the witness (a virgin) doesn’t know. The Trial Court

refused to permit thé Defendant to use this record as an

exhibit because the Court had refused the State’s request

to use it unless it did so through the doctor who did the

actual physical examination of the Complainant. The

Common Pleas Court said that-Defendant couldn't use

this record because what was sauce for the -goose- was

‘sauce for the gander.” That. isn’t so. Defendant is per- .

mitted to waive the constitutional right to face the witnesses

against him. Brookhart v. Janis, 384 US }.

In State v. Tims, 38 OO 2rid 328, the Supreme Court

of Ohio said that the Defendant has a Constitutional right

to be faced by the witnesses against him and that lacking

the witness who’ prepared such a report, the report can-

‘ not be used against him. The State has no such Constitu-

tional right and the Defendant, if he chooses, may use such

a business record after seme ctitte it to be a business

record.

A defendant has a.right to waive a Constitutional right

provided it is clearly established that he-did so intentional-

ly. Johnson v. Zerbst, 304 .US 458; Brookhart v. Janis, 384

US 1. The refusal of the Court to permit this Defendant

to do so was a violation of his right-to equal protection

of the law and was prejudicial « error. 4

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ol

( CONCLUSION

For these reasons, a Writ of Certiorari should issue to—

review the judgment me opinion of the Supreme Court o

Ohio. -

Respecifully valid a ‘

MQRRIS G. SULLIVAN

410 _ Atlas Bank Building

Cincinnati, Ohio 45202

Attorney for Petitioner

12

APPENDIX &.

OPINION OF SUPREME COURT OF OHIO. |

Tue STate or Onto, APPELLEE, v. PARROTT, APPELLANT. ;

(Cite. as State v. Parrott (1971), 27 Ohio St. 2d 205.]

Criminal procedure — Preliminary examination — Riglhit to

counsel — Articles VI and XIV, Amendments, U. S. Con-

' stitution — Rule that denial of counsel invalidates con-

-

viction — Not retroactive.

The rule announced in Coleman v. Alabama, 399 U. S. l,

that a preliminary examination is a critical stage of the

criminal process during which a defendant's right to

counsel is protected by the Sixth and Fourteenth Amend--

ments to the United States. Constitution, and that a

denial of counsel at that stage invalidates a subsequent

conviction unless the denial of counsel can be shown to

_ be harmless error, is not retroactively applicable.

(No. 70-544—Decided July 14, 1971.)

Appeat from the Court of. Appeals for Butler County.

‘Dennis Willian Parrott was indicted for a violation of

R. C. 2905.01. The indictment alleges that-he had carnal

knowlédge of a female person 15 years of age, forcibly and -

against her will. Prior to trial, on October 30, 1969, ap:

pellant moved to suppress all the state’s evidence for the

- Mwason that he had been without counsel at the preliminary

examination. ‘After a hearihg on December 3, 1969, the

motion was denied. On December 10 and ll, 1969, -ap-

pellant was tried before a jury. He was convicted ‘of the

lesser included offense of assault with intent to rape, con-

trary to R. C. 2901.24.

‘ 13 2 -

The state’s evidence showed that the victim and her .

girl friend had run away from their homes in Pennsylvania,

and had been picked up by appellant, a 28-year-old truck .

* driver en route from New York to: St. Louis, via Cin-.

‘cinnati, where he resided. “According to the state’s evi-

dence, the assault took place near Oxford, Ohio, in Butlet

County, * ay dss ee

On May 20, 1969, Parrott, while in Hamilton County,

where he had been detained on other charges, was arrested

and taken to Butler County. Appellant had retained coun-

sel, Louis J. Hendricks, Jn, regarding the Hamilton Coun-

ty charge;- who testified at the hearing’ on appellant’s mo-

tion to suppress, that he’ was present when appellant was

arrested and taken to Butler County. | He stated that since

he understood ' that Parrott was to make bond on the But-

ler County charge, he did not accompany* him. Upon. |

calling the-sheriff’s office in Butler County, however, he

was informed that appellant was at that time in court

for preliminary examination. Mr. Hendricks also téstified

that he spoke with Detective Castator by telephone, who

did not permit him to speak with appellant, remarking that

the preliminary examination was then in progress.

Appellant Parrott testified that he had been informed

of his right to counsel by the judge at the preliminary

examination, but .had not made a definitive request for

such assistance at that time. However,-he had previously

requested permission from. Detective Castator to make a .

telephone call to his lawyer, but testified that the request

was denied. A plea of nat guilty was entered on his be-

half by the judge at that hearing.

Detective Castator testified -that appellant did not re-.

. quest permission to ‘call his attorney, and that in their

telephone conversation Mr. Hendricks did not ask to speak

_ to his client. The same night of the preliminary examiia-

tion appellant was bound over to the grand jury. a

At the hearing on appellant’s* motion to suppress, his

counsel requested that he: be permitted to call Detective

Castator and cross-examine him’ as a hostile witness. ‘The

court denial the request. : 7

At. trial, the ‘state attempted to introduce -in evidence

a hospital medical record of emergency room treatment, .

given the [5-year-old girl, the alleged victim of the rape.

Defense counsel’s objection to the admission of the record

was sustained. In appellant’s case, he attempted to offer -

the same record in evidence, ‘but the prosecutor's objectign

to its adniission was also sustained.

The trial court, in addition to charging the jury con-

cerning the elements of the crime of rape, charged on the:

elements of “rape with consent .of a female under the age

of sixteen. or carnal knowledge of a female under sixteen

with consent.” The jury was also instructed as to the.

lesser included: offenses, assault with intent to. rape and

_ assault and battery. ‘ |

_ Appellant’s conviction. was Miniabd by the Court at Ap-

peals, andethis cause’ is now before this court pursuant to

the allowance of a motion for leave of appeal. ,

‘Mr.- Richard J. Wessel, _ Prosecuting attorriey, for ap- |

pellee. «

_Mr. Morris G. Sullivan, for appellant.’

Duncan, € In Coleman v. Alabama (1970), 399 U. S.

1,‘ decided’ on June 22, 1970, the Udited States: Supreme

Court, in-dealing with an Alabama criminal prosecution,

decided that agpreliminary examination was a critical stage

ofthe criminal process during which a defendant's right

to counsel is protected by the Sixth and Fourteenth Amend-

ments to the United States Constitution. It was there . |

a cae :

held that. a denial of dowtect at is stage invalidates a

subsequent conviction unless. it can be shown that the

denial: was harmless error. Under the rule of Chapman

v. California (1967), 386 U. S. 18, the denial of the con-

stitutional right can be harmless error .only if illustrated is

harmless beyond a reasonable doubt.

Even though ‘there are certain differences between the .

Alabama preliniinary examination procedure and that in

Ohio, there remains ‘no question that after the decision in

Coleman v. Alabama, supra, Ohio courts art required to |

observe the Sixth and Fourteenth amendment rights of an

accused at a preliminary examination, notw ithstanding prior

decisions of this court. have held. otherwise. .See State

ex rel. Haynes, v. Powers (1969), 20 Ohio St.’ 2d 16;

Freeman v. Maxwell (1964) , 177 Ohio St. 93.

We must first.decide whether the Coleman. rule is retro-.

active so as to establish requirements for the preliminary

‘examination in the case at bar. Other jurisdictions ap-

parently. have reached different conclusions. regarding:

whether the rule in Coleman is applicable retr spectiv ely.!

Appellant invites our attention to the fact that the case

of White v. Maryland (1963), 373: U. S. 59, was held to

be retroactive. The case at, bar, as well as Coleman, is

distinguishable froni White v. Maryland, supra. Although

- “critical, stage?” language was used in White and in Coleman

in describing « a preliminary examination, in While, a ——*

-

-'The following jurisdictions apparently have applied C oleman to .

issues that .had arisen prior to its being decided: Schnepp: v. Hooker

(C. C. A. 9, 1970), 429 F. 2d 1096; Hurley v. Bonnett (C, C. A 5,

1970), 430 F. 2d 1275; People v.,Winslow. (1970), 35°A. D. 2a 594,

313 N. Y. Supp. 2d 571. The followi ing decisions: have held Coleman

by have prospective application only: United States v. Pate (C. C. A.

1970), 430 F. 2d 639; Kochel v. State (1970), 10 Md. App. If,

267 A. 2d 755; Commonwealth vy. a (1970), 440 Pa. 205, 269

A. 2d 898; Siate v. Caffey (Mo., 1970), 457 /S. W. 2d 657; Konvalin

v. Sigler (C. C. A. 8,. sai 431 F. 2d 1156.

A F °

° .

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~

. 16 * ¢

plea entered by the detendam not represented by counsel

ata grelifninary hearing was permitted to be used against

hint at trial. Phe denralvol counsel in White ander those

circumstances Was held to be violative of the constitutional

right to comnsel, and its thrust so serious that a fair trial

was denied. The court, in’ Arsenault v. Massachusetts

(1968) , “393 UL S. 5, 6, stated:

* The right to counsel at the trial (Gideon v. Wainwright,

372, ay S$. 335); on appeal (Douglas v. California, 372

U.S. 353) ; and a the other ‘critical’ stages of the criminal

teterite (Hamilton v. Alabama, 308 U. S, BP) have

all been, made retroactive, since the ‘denial of the right

must: almost invariably deny a tar trial” See Stovall v.

Denno, 388 U.S. 298, 297. Capes added.) ”

See, also, Artchen v. Smith (i971), U.S. -, 2.

L. Ed. 2d 519. .° - :

Where evidence is taken.or a plea of guilty is entered

by a defendane who was deprived of the constititional

right to legal assistance ata preliminary ex.veituion, and

such evalence or plea is allowed to be used agaimst rhe

defendant at his trial, the harm is so far-reaching that it

approaches a-Kind of denial of counsel held to be a violation

of the United States C constitution ge retroactive in Gideon:

v. Wainwright, supra (372 U.S. 335).

In Coleman v. Alabama, supra (3909 U.S.1), the rationale

of the court clearly describes the handicap to a defendant

“at trial stemming from the failure to have eounsel at‘ a

preliminary examination, including the process of accumu

lating ‘information. for the future ‘trial. The court did

not, however, hold that deficiency to be a denial of cotinsel

‘in the Gideon sense. :

Fhe differing concerns are evidenced by the fact that,

in Coleman, the constitutional infirmity cou/d be shown

to be harmless error. On the other hand, when counsel is

17 pokes)

denied at a preliminary examination, where evidence taken

or a plea entered at the hearing is introduced against a de-

fendant at trial, the error cannot be shown to be harmless

error. See White v. Maryland, supra. .

~ A declaration that a particular stage is a “critical stage”

‘in a criminal procéeding carries no mandate that the dec-

laration be applied retroactively. United States v. Wade.

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

U.S. 263; Miranda v. Arizona (1966), 38 U. S. 436; and

Escobedo v. Ilinots (1964) , 378 U.S. 478, involved “critical .

stages” in criminal proceedings. “Nevertheless, the rule of

those cases has been decided to be applicable prospectively

only. See Johnson v. New Jersey (1966) , 384 U. S. 729:

Stovall v. Denno (1967), 388 U. S.-293.

In view cof the basis of the-decision in Coleman v. Ala- .

bama, supra (399 Us S. 1), the reliance placed on the

‘former de termimations of the noncritical nature of a pre-

liminary examination’ under R. C. 2937.01 et seq., and

the fact that, in-this case, appellant has not indicated that

any evidence taken at 2 preliminary examination was er-

roncously “permitted to affect his trial, we decide that

the trial court chd ‘not err in ruling on the motion. to

‘suppress. Stovall v. Denno, supra.

The rule announced in Coleman v. Alabama, supra,

that a preliminary examination is a critical stage of the

criminal process during which a defendant's right"to coun-

“sel is protected ‘by the Sixth and Fourteenth Amendments

to the United States Constitutionyand that a denial of coun-

sel at that stage invalidates a subsequent conviction, unless _

the dewial of counsel can be shown to be harmless error,

is not applicable retrospectively.

- Appellant also urges that the trial enurt erred in instruct.

ing the jury on the lesser included offense of carnal knowl-

edge of a female under sixteen with her corsent. R.-C.

* 18 ‘

/ ©

2905.03. He argues that this offense * ‘entails the presence ~,

of some evidence that the act of iritercourse was by agree-

ment of the parties and without force,” and, that there is

no evidence of such an agreement. In order to sustain

a conviction under this statute the state need not prove

that the act was with. the consent of the female. The

rule is’ well established that “Consent of the victim is not

an essential element of the crime of statutory rape specified

in Section 2905.03 Revised Code (carnal knowledge by

one 18 or over of ‘a female * * * under * * * 16 * * *

with her consent’) .” State‘v. Daniels, 169 Ohio St. 87, para-

- graph one of the syllabus: State v. Carl (1905) ,.71 Ohio ~

St. 259. See alson Radke v. State (1928), | 107 Ohio St. -

- $99.

_ On the other hand, for a conviction = R. C. 2905.01

and 2905.02, there must be evidence that the! act was'done

“against her will” and without her consent. | See State v.

Daniels, supra, paragraph two of the syllabus. Therefore,

under R. C. 2905.03 proof of the consent of a female under

16, to intercourse is not a necessary element of the state's

case. Conversely, under 2905.01 and 2905.02, a female may

consent to intercourse and such acquiescence would pre-

vent a finding that the act was done against her will. ‘The

court’s instruction was proper.

We also find no error in the trial court’s refusal to allow

appellant to introduce the hospital record of the alleged

victim's examination. The trial court had first sustained

appellant's objection to the state’s introduction of the same

hospital report under our culing i in State v. Tims (1967) ,

9 Ohio St. 2d 136, which held:

“The Business Records as Evidence Act, Sectioh 2317.-

40, Revised Code, which allows the admission into evidence.

of records without substantiation by the person who actual-

ly. performed the acts which resulted in*such record: is not

bad -

2 .

19.

"applicable to criminal proceedings so as to allow the ‘ad-

mission into évidence under such act of hospital records

showing the results of a ' physical examination of an alleged

rape victim.’

We do not believe that it was an abuse of discretion

for the court to again refuse the introduction of this ex-

hibit merely because the second attempt to introduce it was

by the defendant.

The court’s refusal, at the hearing on appellant’s motion

to suppress, to allow defense counsel the right to cross-

examine Detective Castator as a hostile witness was also

_ well ,within the perimeter of its discretion. Counsel did’

not give a reason for his request. Castator’s testimony ob-

viously was not supportive of appellant's theory of suppres-

sion Bf the evidence. We find no facts from which the trial

court’s decision of this matter can be deemed erroneous.

Accordingly, the = ef the Court of on is

affirmed.

Judgment affirmed.

~~

O'NEILL, C. J., SCHNEIDER, Herpert, CorriGan, STERN

cand Leacu, JJ., concur.