Opposition Brief — Ohio v. Knuckles

No. 92-1528

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1992

STATE OF OHIO,

Petitioner,

Vv.

JOHN C. KNUCKLES, SR.,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF OHIO

RESPONDENT’S BRIEF IN OPPOSITION

JAMES KURA

Ohio Public Defender

JOHN A. BAY

Assistant State Public Defender

Counsel of Record

(MS.) KRIS H. WALKER

Assistant State Public Defender

Ohio Public Defender Commission

8 East Long Street - 11th Floor

Columbus, Ohio 43266-0587

(614) 466-5394

COUNSEL FOR RESPONDENT

—_———=_="a==z=={=_=_=_E__

TABLE OF CONTENTS :

, PAGE NUMBER

BRS IR ens 8 6 dP ere |

ee eee es Gan aa eek wk eae ka ee ba baw Re

REASONS WHY THE PETITION SHOULD BE DENIED...........ccccccceccace

L. THE OHIO SUPREME COURT’S DETERMINATION THAT

THE STATE VIOLATED RESPONDENT’S RIGHT TO HAVE

COUNSEL PRESENT DURING CUSTODIAL

[INTERROGATION BY CONTINUING THE INTERROGATION

AFTER HE HAD UNEQUIVOCALLY INVOKED HIS RIGHT,

AND THAT ALL SPATEMENTS OBTAINED AS A RESULT

OF THE PROHIBITED [INTERROGATION WERE

[INADMISSIBLE DOES NOT CONFLICT WITH DECISIONS

OF OTHER STATE COURTS OF LAST RESORT AND

RAISES NO QUESTIONS OF FEDERAL LAW WHICH HAVE

NOT ALREADY BEEN SETTLED BY THIS COURT......

La « THE OHIO SUPREME COURT’S DETERMINATION THAT

THE STATE VIOLATED RESPONDENT’S RIGHT TO HAVE

COUNSEL PRESENT DURING CUSTODIAL

[INTERROGATION BY CONTINUING THE INTERROGATION

AFTER HE HAD UNEQUIVOCALLY INVOKED HIS RIGHT

AND BY CONDUCTING A GUN SHOT RESIDUE TEST

DURING THE COURSE OF AN ACTIVE INTERROGATION

DOES NOT CONFLICT WITH DECISIONS OF OTHER

STATE COURTS OF LAST RESORT OR DECISIONS OF

EE aS beak he: Go Mk OA Ade 06 6 006) eee ks

[I1Il. TRADITIONALLY, THIS COURT HAS NOT ADDRESSED

[SSUES THAT HAVE NOT BEEN RAISED AND RULE

UPON IN THE LOWER COURTS

TABLE OF AUTHORITIES

PAGE NUMBER

Day v. State, 816 &.W. 2d 852 (Ark. 1992)... ccecsessseereshdh

Edwards v. Arizona, 451 U.S. 477 (1981)... ceccscccces passim

Bagie wv. Teaac, 456 U.S. 107 (L9CRZ).wcsccccsecsccssseces oe eLS

Puller v. Gregom, 417 0.6. 40, (197TE).ccccccccecessesceses 14

King v. Commonwealth, 416 S.E. 2d 669 (Va. 1992)........ »eaa

Michigan Vv. Mosely, €23 U.S. 96 (1975) .ccccccccccesesecess 12

Miranda v. Arizona, 384 U.S. 436 (1966)... cccecccvccecs passim

murray VW. Carrier, €77 U.S. 476 (2SRG6..cccsncccesssesscenss 15

Oregon v. Gags, 420 U.5. 7i€ GG F727 CASTS) cc ccccccusesecen 17

People v. Pierson, 670 P. 2d 770 (Colo. 1983)....ccccccves 11

>

>

Rhode Island v. Innis, 446 U.S. 291 (1980)... ccccsvces 3,6,7

state v. Boykin, 432 N.W. 2d 60 (S.Dak. 1988)... cccceccs 11

State v. Knuckles No. CA89-11-159 (Butler Cty, Ohio

& LOPR DOR 6 OOCRECEEESOEOCUSEN6EKHDD ECOL ES CESS D ANS ED 16

tate v. Knuckles, 65 Ohio St. 3d 494 (1992).......... passim

Saseurigus VT. Genes, 633 U.S. Fa tl BT 7) sa 40 6 beh 8 cea wees ia

TOUAKIMN VW. BMilier, $25 U.8. 23h, 236. tidTE).. «cn cvinns» 15,16

NAL PROVISIONS

Fifth Amendment, United States Constitution.......... rey re ©,

Fourteenth Amendment, United States Constitution........ 9,17

TORY PROVISIONS

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alia

: CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the Fifth and Fourteenth Amendments to

the Constitution of the United States which provide, in part:

FIFTH AMENDMENT

No person *** shall be compelled in any

criminal case to be a witness against

himself, ***

FOURTEENTH AMENDMENT

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. STATEMENT OF THE CASE

Respondent accepts Petitioner’s statement of the case with

the following clarification. Petitioner states "***the two

bullets recovered from the victim’s head *** were identical mates

to the bullet dug from the ground at Respondent’s residence."

Petition at 5. However, Petitioner neglects to disclose that

Petitioner’s ballistics expert could not conclusively determine,

althougn he did not rule out the possibility, that the bullets

recovered from the victim had been fired from the handgun found

in Respondent’s car.

SUMMARY OF THE ARGUMENT

The decision of the Ohio Supreme Court rests solidly on

precedent of this Court and does not conflict with other state

Ourts of last resort.

decision of the Ohio Supreme Court did not decide the

issue advanced by Petitioner in his third reason for granting the

writ. No Ohio Court has rendered a decision on that issue. As

this Court only has jurisdiction to review the final judgment of

the highest court of a State, 28 U.S.C. Sec. 1257(a) does not

nfer jurisdiction in this Court to consider that issue.

I.

THE OHIO SUPREME COURT’S DETERMINATION THAT

THE STATE VIOLATED RESPONDENT’S RIGHT TO HAVE

COUNSEL PRESENT DURING CUSTODIAL

INTERROGATION BY CONTINUING THE INTERROGATION

AFTER HE HAD UNEQUIVOCALLY INVOKED HIS RIGHT,

AND THAT ALL STATEMENTS OBTAINED AS A RESULT

OF THE PROHIBITED INTERROGATION WERE

INADMISSIBLE DOES NOT CONFLICT WITH DECISIONS

OF OTHER STATE COURTS OF LAST RESORT AND

. RAISES NO QUESTIONS OF FEDERAL LAW WHICH HAVE

NOT ALREADY BEEN SETTLED BY THIS COURT.

For its first reason for granting the writ, Petitioner

Suggests the Ohio Supreme Court "misapplie[d] the concept of

‘interrogation’ to include any statement or remark of a police

officer which ‘invited a response’. Petition at 7. Careful

review of the Ohio Supreme Court’s decision guickly reveals

Petitioner’s suggestion is unsoundly based on a misinterpretation

of State v. Knuckles, 65 Ohio St. 3d 494 (1992). A fair reading

of the Knuckles decision finds it to be concisely written and

completely faithful to this Court’s decisions in Miranda v.

Arizona, 384 U.S. 436 (1966), Edwards v. Arizona, 451 U.S. 477

(1981), and Rhode Island v. Innis, 446 U.S. 291 (1980).

Petitioner’s difficulty in understanding the decision of the

Ohio Supreme Court appears to be caused by its examination of

portions of the decision out of context. Petitioner relies

heavily on the Ohio Supreme Court’s language "*** even if the

arrest for the bad checks charge had not been a pretext for

bringing Knuckles in to taik about Bennett’s murder, the

statement was still interrogatory in nature. The statement

invited a response.", State v. Knuckles, 65 Ohio St. 3d at 497,

to support its contention that "*** the decision of the Supreme

= =

: Court of Ohio misapplie[d] the concept of ‘interrogation’ to

include any statement or remark of a police officer which

‘invited a response’". Petition at 7.

In context, the questioned language, read with the preceding

paragraph of the decision simply states the Ohio Supreme Court’s

thorough Edwards analysis, as discussed below at pages 5-7, would

remain unchanged even if Respondent’s arrest on the bad check

warrant was not a pretext for the Bennett murder interrogation.

Again, taking language of the decision out of context,

Petitioner states, “Incredibly, the Court below in its decision

stated: ‘The bright line rule established in these cases

eliminates the need for ad hoc determinations by the courts

+

regarding what communications with a defendant are permissible

once counsel is requested.’". (Citations omitted). Petitioner,

examining the above text from the Ohio Supreme Court Knuckles

decision out of context, mistakenly concludes "The Court thus

misperceives Edwards’ so-called ‘bright-line rule’ to allow

irts to be relieved of any duty to determine, on a case-by-case

basis, whether a communication made by police to a defendant who

has invoked his right to counsel is interrogation. This

abdication of judicial responsibility for determining the Innis

question runs afoul of Innis ***," Petition at page 12.

Consideration of the questioned text, in context, demonstrates

the deficiency in Petitioner’s analysis.

In context, the questioned portion of the decision is not

~ a

ry

ject to Petitioner’s interpretation. The two sentences

following the questioned portion helps the reader understand the

Knuckles decision. The Ohio Supreme Court explained the "bright-

line rule *** eliminates the need for ad hoc determinations by

the courts regarding what communications with a defendant are

permissible once counsel is requested [by] *** remov[ing]

uncertainty by stopping all interrogation. It clearly tells the

police what cannot be done." State v. Knuckles, 65 Ohio St. 3d

it 497. The Ohio Supreme Court was simply expressing its belief

that the bright-line test should eliminate the "need for ad hoc

determinations by courts if the police would simply observe it

This interpretation is consistent with the balance of the opinion

where the Supreme Court acknowledged the relevant decisions

of tl bee i j M anda ations, faithfully applied

the de t tl facts eal ase, and held eke that the

state! nt WV wa tT t } t y a t B bby Deny! tt’ was inh

intel jation prohibited by Edwards. Id. at 497, 605 N.E 2d,

at 32.

n l re t beqal Lt 1ec1is I witn tne

de irat yle 1e before the ict 3 whether the

statement W want t talk to you about Bobby Bennett’ is a

‘further: interrogation’ prohibited by Edwards v. Arizona.

(citations mitted). Knuckles, 65 Ohio St. 3d at 495. In its

decision, the Ohio Supreme Court faithfully observed the Miranda

rule: the United States Supreme Court held that when a

defendant requests an attorney, the police must Sto;

interrogation until an attorney is present." Id. at 496. The

Ohio Supreme Court then faithfully applied the Innis definition

of interrogation. ‘interrogation’ has been defined as including

‘any words or actions on the part of the police (other than those

normally attendant to arrest and custody) that the police should

know are reasonably likely to elicit an incriminating response

from the suspect.’". Id. at 496 quoting Innis, 446 U.S. 291.

Next, the Ohio Supreme Court faithfully discussed Edwards v.

Arizona, where this Court held “that an accused *** having

expressed his desire to deal with the police only through

counsel, is not subject to further interrogation by the

authorities until counsel has been made available to him, unless

the accused himself initiates further communication, exchanges,

conversations with the police." 451 U.S. 477, at 484-485.

Examining the record, the Ohio Supreme Court found

Respondent had unequivocally "expressed his desire to deal with

the police only through counsel". Edwards 451 U.S. at 484-485.

Shortly after discovering the death of Bobby Bennett, police

began looking for Respondent to question him, because they knew

f his relationship with the deceased and because he was seen

talking with him prior to the homicide. Respondent was arrested

an outstanding warrant for bad checks. At the police station,

Respondent was taken into a closed room by three detectives. As

soon as a detective read Respondent his Miranda warnings,

Respondent unequivocally requested an attorney, by stating: va

want an attorney".

Examining the record, the Ohio Supreme Court found "counsel

[was] not made available to him" and that Respondent did not "

*** initiat[e] further communication, exchanges, or conversations

with the police." Edwards, 451 U.S at 484-485. With the issue

thus narrowed, the Ohio Supreme Court found " *** several factors

which required holding that the statement ‘We want to talk to

you about Bobby Bennett’ was an interrogation prohibited by

Edwards." Knuckles, 65 Ohio St. 3d at 496-497.

Contrary to Petitioner’s contentions, the Ohio Supreme Court

did not " *** abidicat{e] [its] judicial responsibility for

determining the Innis question" (Petition at 12), did not focus

"solely on the fact that the officer’s words produced a response"

(Petition at 9), did not disregard " *** the actual intent ***"

of the police officer (Petition at 9), and did consider the

circumstances in which the statement of the police officer was

made. The Ohio Supreme Court found the statement of the police

officer "We want to talk to about Bobby’ Bennett" was

interrogation because: (1) "*** the only reason Knuckles was

arrested was so police could talk to him about Bennett’s murder";

(2) the police "*** had no intention of pursuing the bad check

charge"; (3) "[t]he statement was more than the ‘offhand remarks’

in Innis"; and the statement was designed to elicit an

incriminating response. Knuckles, 65 Ohio St. 3d at 497. The

Ohio Supreme Court did not expand the Innis definition; it simply

applied it correctly to the facts of this case.

For this very reason, Petitioner’s suggestion that "The Ohio

Supreme Court’s decision is also in conflict with the decisions

of numerous other state courts of last resort *** " (Petition 12-

13) is not well taken. As discussed above, Ohio has not

"eliminat(ed] the need for case-by-case determinations by the

oF

courts regarding what communications with a defendant are

interrogation or its functional equivalent" as claimed by the

State at page 13 of its Petition. The Ohio Supreme Court

correctly applied Edwards v. Arizona and found respondent had

unequivocally invoked his right to counsel during custodial

interrogation and that the State had violated his constitutional

right by continuing interrogation in the absence of counsel.

This decision of the Ohio Supreme Court does not conflict with

decisions of other state courts of last resort and raises no

question of federal law which has not already been settlea by

this Court.

For these reasons, this Court should deny the petition for

7 : + + lan “+ TAY

Whbhe Ga CertcLslorari.

II.

THE OHIO SUPREME COURT’S DETERMINATION THAT

THE STATE VIOLATED RESPONDENT’S RIGHT TO HAVE

COUNSEL PRESENT DURING CUSTODIAL

INTERROGATION BY CONTINUING THE INTERROGATION

AFTER HE HAD UNEQUIVOCALLY INVOKED HIS RIGHT

AND BY CONDUCTING A GUN SHOT RESIDUE TEST

DURING THE COURSE OF AN ACTIVE INTERROGATION

DOES NOT CONFLICT WITH DECISIONS OF OTHER

STATE COURTS OF LAST RESORT OR DECISIONS OF

THIS COURT.

The Ohio Supreme Court held "[t]jhe use of statements made by

the defendant after his request for an attorney violated his right

under the Fifth and Fourteenth Amendments (as set forth in

Edwards, supra) to have counsel present during custodial

interrogation." State v. Knuckles, 65 Ohio St. 3d 494, 495

(1992). In making this determination, the Ohio Supreme Court

characterized the test established by this Court in Edwards v.

Arizona, 451 U.S. 477 (1981) for siealing with interrogation of

defendants who have invoked their right to counsel as a bright-

line test. "Simply stated, if a defendant requests counsel, the

police must stop all questioning and interrogation immediately."

State v. Knuckles, 65 Ohio St. 3d at 495.

In Edwards v. Arizona, this Court held "that an accused ***

having expressed his desire to deal with the police only through

counsel, is not subject to further interrogation by the

authorities until counsel has been made available to him, unless

the accused himself initiates further communication, exchanges, or

conversations with the police." 451 U.S. at 484-485. The Ohio

Supreme Court correctly applied Edwards v. Arizona and found

Respondent Knuckles had unequivocally invoked his right to counsel

during the custodial interrogation and that the State had violated

ae

his constitutional right by continuing interrogation in the

absence of counsel. This decision of the Ohio Supreme Court does

not conflict with decisions of other state courts of last resort

or decisions of this Court.

For his second reason for granting the writ, Petitioner

presents three distinct arguments. First, Petitioner claims the

Ohio Supreme Court did not address the issue of whether

Respondent’s statements made when an officer entered the

interrogation room to administer a gun shot residue test during

the course of active interrogation were "unsolicited

declarations" or a product of the interrogation. Secondly,

Petitioner suggests that the administration of the gun shot

residue test can be severed from the active interrogation for

purposes of the Edwards v. Arizona analysis. Thirdly, Petitioner

suggests Respondent initiated further communication with the

police when the gun shot residue test was administered. None of

these arguments are sound.

A.

First, Petitioner posits that the Ohio Supreme Court failed

“to address an issue, briefed by the parties and extant in the

record herein, involving the Respondent ’s unsolicited

declarations made when the officer entered the room with 4 kit to

swab his hands for gunshot residue." Petition at 15. Petitioner

fails to recognize the issue was decided sub silentio when the

Ohio Supreme Court determined the “unsolicited declarations" were

inadmissible because they were obtained during interrogation

prohibited by Edwards. The Ohio Supreme Court found the

ol@e

declarations were not unsolicited, but a product of

unconstitutional interrogation.

B.

Next, Petitioner attempts to sever the administration of the

gun shot residue test from the active interrogation. Petitioner

argues the gun shot residue test would have been administered

even if Respondent Knuckles’ right to counsel during custodial

interrogation had been honored; and therefore, the statements

Knuckles made during the-gun shot residue test were voluntary and

unsolicited.

Interestingly, none of the cases relied upon by Petitioner

to demonstrate a conflict between the Ohio Supreme Court and

other state courts of last resort involve a physical test

administered during an active interrogation. In People v.

Pierson, 670 P. 2d 770 (Colo. 1983), Pierson’s request for

counsel was scrupulously honored and interrogation had ceased

when a barium antimony test was administered. Under those

circumstances, the Colorado Court found Pierce’s admission that

he had fired a gun earlier was admissible. However, the Colorado

Court found Pierce’s answers to the detective’s follow up

questions were a product of custodial interrogation and not

admissible. The Colorado Court emphasized "We have repeatedly

held that once an accused requests counsel all questioning must

cease." Id. at 774. In Day v. State, 816 S.W. 2d 852 (Ark. 1991)

(statement volunteered during weapon frisk), King Vv.

Commonwealth, 416 S.E. 2d 669 (Va. 1992) (statement volunteered

during collection of forensic samples), and State v. Boykin, 432

wite

N.W. 2d 60 (S.Dak. 1988) (statements volunteered during strip

search), the physical tests were not administered during the

course of active interrogation.

Petitioner may not so easily explain away its violation of

Respondent’s constitutional right. Respondent’s right to have

counsel present during custodial interrogation was not honored.

The police unconstitutionally continued the interrogation and

administered the gun shot residue test during the course of

active interrogation. There was no discernible break in the

interrogation. Nor, is there an indication in the record of the

interrogating officers leaving the room during the test.

Had Respondent’s request for counsel been scrupulously

honored and had interrogation ceased, as required by Michigan v.

Mosely, 423 U.S. 96 (1975), Petitioner’s argument would be

persuasive. "The Fifth Amendment right identified in Miranda is

the right to have counsel present at any custodial interrogation.

Absent such interrogation, there would have been no infringement

of the right that [Respondent] invoked***" Edwards v. Arizona,

451 U.S. at 485-486. But, Respondent’s request for counsel was

ignored and the interrogation was unconstitutionally continued.

Under these circumstances, the Ohio Supreme Court correctly held

that the statements were not admissible against Respondent

because they were obtained in violation of Edwards v. Arizona.

State v. Knuckles, 65 Ohio St. 3d at 497.

e

Finally, Petitioner suggests that “even if Edwards v.

Arizona had barred any preceding interrogation, the Respondent

oite

himself had ‘initiate[d] further communication, exchanges, or

conversations with the police,’ id., at 484-485, and consequently

invited further discussion with the police about this subject

matter." Petition at 16-17. Petitioner’s suggestion that a valid

waiver of an accused’s right to have counsel present during

custodial interrogation can be established by showing only that

he responded to further police-initiated custodial interrogation

has been soundly rejected by this Court. "“[Wjhen an accused has

invoked his right to have counsel present during custodial

interrogation, a valid waiver of that right cannot be established

by showing only that he responded to further police-initiated

custodial interrogation even if he has been advised of his

rights.” Edwards v. Arizona, 451 U.S. at 484. (Emphasis added).

For these reasons, this Court should deny the petition for

writ cf certiorari.

=

III.

TRADITIONALLY, THIS COURT HAS NOT ADDRESSED

ISSUES THAT HAVE NOT BEEN RAISED AND RULED

UPON IN THE LOWER COURTS.

For his third reason for granting the writ, Petitioner

suggests the instant case presents the issue “whether physical

evidence yielded from statements which the Court would deem to be

taken in violation of the prophylactic, ‘bright-line’ rules of

Miranda or Edwards but which were otherwise uncoerced and

voluntary must be suppressed as ‘fruit of the poisonous tree,’."

(Citation omitted). Petition at 18. It would be inappropriate

for the Court to address this issue since it is not properly

before the Court in this case. Under 28 U.S.C. Sec. 1257(a),

this Court only has jurisdiction to review the final judgment of

the highest court of a State. As indicated below, no Ohio Court

has rendered a decision on this issue. See Fuller v. Oregon, 417

u.S. 40, 50 n. 11 (1974).

A.

This issue has not been raised in any of the lower courts in

this case. At trial, the State of Ohio argued Detective Well’s

"statement" was not interrogation and the search of the back yard

of Respondent Knuckles’ residence was consensual. During

Respondent Knuckles’ appeal to the state court of appeals,

Petitioner argued three alternatives: (1) Knuckles statements

about firing a handgun were not made during custodial

interrogation; (2) Detective Well’s "“statement" was not

interrogation; and (3) Respondent Knuckles expressly iimited his

right to have counsel present during custodial interrogation to

niin

the bad check charges. During Respondent Knuckles’ appeal to the

Ohio Supreme Court, Petitioner made a similar three prong

argument. Prior to filing its Petition for Writ of Certiorari,

the State of Ohio had never raised the issue of the admissibility

of the physical evidence yielded from interrogation prohibited by

Edwards v. Arizona on the basis that Respondent’s statements were

“otherwise uncoerced and voluntary". Petition at 18. "Ordinarily,

this Court does not decide questions not raised or resolved in

the lower court." Youakim v. Miller, 425 U.S. 231, 234 (1976).

Relying on federal-state comity principles, this Court has

he’ criminal defendants are precluded from raising issues in

federal court where those issues were not properly preserved or

raised in the state courts. Wainwright v. Sykes, 433 U.S. 72

(1977); Engle v. Isaac, 456 U.S. 107 (1982); Murray v. Carrier,

477 U.S. 478 (1986). The rationale of these decisions should

extend to prosecutors who fail to raise an issue at every stage

of the proceedings only to raise it, for the first time, in their

petition for writ of certiorari in this Court. The prosecutor has

waived the federal issue and there is no basis for the assertion

of the Court’s jurisdiction.

B.

This issue has not been addressed by any of the lower courts

in this case. The state court of appeals narrowly decided the

Edwards v. Arizona issue on the basis of whether Detective Well’s

statement: "We wanted to talk to you about Bobby Bennett."

following Respondent’s invocation of his right to have counsel

present during custodial interrogation was interrogation. "Since

white

Edwards requires an end to all questioning and interrogation

after the accused invokes his right to counsel, we must decide

whether Wells’ statement constituted questioning within the

meaning of Miranda, thereby amounting to a violation of the

prohibition against further questioning." State v. Knuckles No.

CA89-11-159 at 11 (Butler Cty, Ohio Jul. 15, 1991), Petition

Appendix at A-21. The state court of appeals held that Detective

Wells’ statement was not interrogation. Additionally, the state

court of appeals held that Respondent’s request for counsel

during custodial interrogation was expressly limited to the bad

check charges. Id. at 12, Petition Appendix at A-22.

Similarly, the Ohio Supreme Court decided the instant case

narrowly: "The single issue before the court is whether the

statement "We want to talk to you about Bobby Bennett" is a

"further interrogation" prohibited by Edwards v. Arizona (1981),

451 U.S. 477." (parallel citation omitted). State v. Knuckles, 65

Ohio St. 3d 494 at 495. The Ohio Supreme Court, applying well-

settled precedent of this Court, held that the statement "was an

interrogation prohibited by Edwards." Id. at 497.

Both the Court of- Appeals for Butler County, Ohio and the

Ohio Supreme Court did not decide the question advanced by

Petitioner in his third reason for granting the writ, but decided

the case on the narrow grounds of whether Detective Wells’

statement "We wanted to talk to you about Bobby Bennett." was

interrogation. "Ordinarily, this Court does not decide questions

not raised or resolved in the lower court." Youakim v. Miller,

451 U.S. 231 (1976).

vite

Cc.

As the Ohio Supreme Court decided the case on the narrow

ground that "***the statement ‘We want to talk to you about Bobby

Bennett’ was an interrogation prohibited by Edwards. State v.

Knuckles, 65 Ohio St. 3d at 497, any opinion issued by this court

concerning, to what extent, if any, the physical evidence derived

from an interrogation prohibited by Edwards is admissible would

be purely advisory. Even Petitioner concedes, "The decisions in

Miranda v. Arizona and Edwards v. Arizona require suppression of

statements taken in violation of the prophylactic rules set forth

in those cases, even if the statements made thereafter are

otherwise voluntary under the Fifth and Fourteenth Amendment

standards." Petition at 18. Regardless of this Court’s opinion

in regard to the admissibility of the physical evidence obtained

through the unconstitutional interrogation, the Ohio Supreme

judgment would be the same. This Court is not permitted to

render an advisory opinion. See Oregon v. Hass, 420 U.S. 714 at

727 (1975) (Justice Brennan dissenting, joined by Justice

Marshall).

For these reasons, the writ for certiorari should be denied.

~\

CONCLUSION

For the foregoing reasons, the petition for writ

certiorari should be denied.

Respectfully submitted,

JAMES KURA

Ohio Public Defender

Ch aBe

of

OWN A BAY V,

Assistant State Public Defender

ounsel of Record

(MS.) KRIS H. WALKER

Assistant State Public Defender

Ohio Public Defender Commission

8 East Long Street - 11th Floor

Columbus, Ohio 43266-0587

(614) 466-5394

COUNSEL FOR RESPONDENT

Ate