# Petition for Writ of Certiorari — Parrott v. Ohio > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0516%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1972 - **Citation:** 405 U.S. 1040 ## Text - 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 eos i, wi : = 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 - et . P ° ae m a 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 . cas . »- ? ba ™ . : . . ; 6 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 ° ° . . ~ . 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0516%3A1. Public record. Not legal advice.