Tompsett v. State of Ohio

Decision Date02 April 1945
Docket NumberNo. 9758.,9758.
PartiesTOMPSETT v. STATE OF OHIO et al.
CourtU.S. Court of Appeals — Sixth Circuit

Edwin Tompsett, in pro. per., on the brief, for appellant.

Daronne R. Tate, of Columbus, Ohio (Thomas J. Herbert and Daronne R. Tate, both of Columbus, Ohio, on the brief), for appellees.

Before HICKS, HAMILTON, and McALLISTER, Circuit Judges.

Writ of Certiorari Denied April 2, 1945. See 65 S.Ct. 916.

HAMILTON, Circuit Judge.

Appellant appeals from an order of the District Court dismissing his petition for a writ of habeas corpus without a hearing.

Appellant is confined in the State Penitentiary at Columbus, Ohio, under a life sentence for armed bank robbery. The judgment of which he complains was rendered pursuant to a valid indictment under a valid state statute. The basis of his petition is (1) that he did not have the benefit of competent counsel at all necessary stages of the proceeding, which culminated in his conviction and sentence; (2) that he was deprived of the right to trial by jury and was convicted on perjured testimony, all in violation of his rights under the Fourteenth Amendment to the Constitution.

Appellant presented his case in the District Court and presents it here in propria persona.

Appellant claims that his rights and remedies in the state courts are inadequate or that they were lost by reason of the negligence of his counsel and in this connection he states that his application for a new trial, appeal to the Court of Appeals of the State, State v. Thompsett, 65 Ohio App. 378, 29 N.E.2d 967, application for a writ of habeas corpus and application for a writ of coram nobis have all been categorically denied.

For the purpose of this appeal, we accept the statement of facts set forth in appellant's petition and also the additional facts set forth in his brief.

About twelve o'clock, noon, November 4, 1938, a branch of the Ohio National Bank at Grandview, Ohio, was robbed, the robbers using firearms to put the employees and customers in fear. On November 7, 1938, appellant and his co-defendant in the state court were apprehended at Akron, Ohio, and returned to Columbus, Ohio, where warrants were issued for them charging them with armed robbery. On November 10, 1938, an attorney of Columbus, Ohio, went to the jail where appellant and his co-defendant were confined and advised them that he had been sent by another attorney of Akron, Ohio, to talk with them about their defense. Appellant and his co-defendant jointly employed the Columbus attorney for a fee of $1,000 to represent them in the trial and in any other proceedings in the case.

A preliminary hearing was had, which appellant's attorney failed to attend. After appellant was indicted and shortly before the trial was commenced, his attorney told appellant and his co-defendant that he had ascertained their trial was to be held before the Honorable Charles A. Leach, presiding Judge of the Court of Common Pleas, Franklin County, Ohio, and stated he had mentioned appellant's case to Judge Leach, who seemed to share the prevalent opinion that appellant and his co-defendant were innocent of the crime charged. The attorney suggested that the defendants waive a jury trial and submit the law and facts to the court, to which suggestion they reluctantly agreed. However, an order waiving a jury was entered in the cause by the defendants through their attorney, and in their presence.

The defense of appellant and his co-defendant was an alibi and none of the state's witnesses personally knew either of them. Their identification of appellant and his co-defendant as participants in the crime was by viewing them at the trial and comparing their visual impression with their memory impression of the physical characteristics of the robbers they had seen in the bank. Appellant was thus identified by three witnesses and his co-defendant by one.

Appellant was a victim in his youth of poliomyelitis and the ravages of the disease had left him with a decided limp in one leg. The agents of the Federal Bureau of Investigation had in their possession a complete physical description of the bank robbers, which was furnished by persons present at the robbery, which description did not conform to the physical characteristics of either appellant or his co-defendant.

Appellant claims that he and his co-defendant, with the latter's wife, were on an automobile trip from Akron, Ohio, to Rushville, Indiana, on the day of the robbery and at the hour the bank robbery occurred all of them were together in a restaurant at Vandalia, Ohio, where there were present several waitresses. Appellant alleges that his attorney wilfully failed to subpoena these witnesses and also failed to issue subpoena duces tecum for the records of the Federal Bureau of Investigation. Appellant says that if these witnesses had testified and the descriptive records of the Federal Bureau of Investigation had been introduced in evidence, such evidence would have shown beyond doubt that appellant was innocent of the crime of which he now stands convicted. Appellant says he and his co-defendant urged their attorney to have these witnesses present and these records produced, all of which he promised, but none of which he did.

Appellant further says that he and his co-defendant requested their attorney to move the court for an order for a separation of witnesses, but that their attorney refused to make the motion and as a result thereof the witnesses heard each other testify and saw some of them identify the accused and also that a state detective stood in the corridor at the entrance to the court room and pointed this appellant and his co-defendant out to each witness before the witness testified and that their attorney ignored their request to ask the court to make the detective desist from coaching witnesses.

Appellant further alleges that all of the state's witnesses who were present in the bank at the time of the robbery testified that three men participated in the robbery who, after obtaining the money, ran from the bank and entered a waiting automobile. Appellant says he was physically unable to run because of his crippled leg, but that his attorney refused to cross-examine the witnesses as to his crippled condition or to call it to the attention of the court.

Appellant alleges that one witness who testified at the trial and identified appellant as a participant in an earlier bank robbery at Clintonville, Ohio, a year later admitted that her statement was false, at which time she identified two other men at Cincinnati, Ohio, as the participants in the Clintonville robbery. Appellant also states that another witness from Akron, Ohio, testified falsely that while he was a detective in that city about eight years previous to the trial, he had arrested appellant and his co-defendant for jointly committing the crime of robbery.

Appellant's attorney neglected to file timely with the Court of Appeals for Franklin County, Ohio, an appeal from the decision of the trial court and appellant was compelled to employ...

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