McMullen v. Maxwell, 39077

Citation209 N.E.2d 449,3 Ohio St.2d 160
Decision Date21 July 1965
Docket NumberNo. 39077,39077
Parties, 32 O.O.2d 150 McMULLEN v. MAXWELL, Warden.
CourtUnited States State Supreme Court of Ohio

This is an action in habeas corpus instituted in this court. In January 1956, petitioner, Edward A. McMullen, was tried and found guilty by a jury of the murder of one Cleveland Chipley during the perpetration of a robbery.

This action is based on the contention that the state suppressed certain material evidence, the existence of which did not become known to petitioner's counsel until March 1963.

From the evidence adduced at the hearing, the following facts appear:

On December 27, 1956, one Grover Cleveland Chipley was killed in Troy, Ohio, during the perpetration of a robbery. Chipley was shot three times and two of the three bullets were recovered, the third remaining in the body. The two recovered bullets were sent to the Bureau of Criminal Identification at London, Ohio, by the Troy chief of police in January 1955.

On February 20, 1955, there was a burglary at the Braun Brothers Packing Company in Troy, Ohio. Three men were apprehended shortly after this burglary, namely, Luther Williams, Van Gardner and Harold Bryarly. Four guns were recovered during the arrest. One of these guns was a 38-caliber Colt official police model with a four-inch barrel. These guns were sent to the Bureau of Criminal Identification at London. Ballistics tests were made and a report was sent to the chief of police that one of the bullets taken from Chipley's body had been fired from the Colt revolver. No report was made as to the other bullet. In May 1955, the Colt revolver and the two bullets were sent to the police department at Columbus, Ohio, for a ballistics report thereon. The police laboratory at Columbus ran a ballistics test and determined that both bullets taken from Chipley's body were fired from the Colt revolver. A written report of this ballistics test was sent to the chief of police at Troy, Ohio.

Upon investigation by the chief of police, it was found that this Colt revolver had disappeared from an Illinois penal institution, and a letter was introduced into evidence from the chief of police to the Illinois penal authorities showing that Bryarly had stated that he had obtained the gun about two years previously from an unknown man.

It is this Colt revolver and the ballistics reports in relation thereto that give rise to the present action. Neither the gun nor the ballistics reports were introduced into evidence, nor was their existence disclosed to the petitioner or his attorney. The prosecuting attorney admitted knowledge of the report from London but denied any knowledge of the Columbus report and of the letter in relation to the possession of the Colt 38. A slip of paper contained in the Chipley file allegedly turned over to the prosecuting attorney's office by the police department indicates that both ballistics reports were turned over to the prosecuting attorney. The prosecuting attorney testified that he was aware of the London report, and that he sent the microphotograph from the one bullet comparison test to the ballistics departments of Cincinnati and Dayton, both of which, from the photograph and in an oral report to him, said that the bullet did not come from the Colt 38, but the experts from both departments refused to testify.

Two ballistics experts testified in this action. Both testified that an adequate ballistics analysis could not be made from a photograph, and that an analysis could be made with the bullets only under a comparison microscope.

During the period of the investigation of the Chipley murder, the chief of police of Troy, assisted by the then city solicitor who subsequently became a special prosecuting attorney when petitioner was tried, had been investigating the murder.

In May 1955, one Ella Mae Maddy made a statement to the chief of police and the solicitor, which led to the arrest of petitioner at the end of June 1955 for the murder of Cleveland Chipley.

An examination of the transcript of the testimony taken at petitioner's trial shows that the state had a strong circumstantial case against petitioner.

The evidence presented by the state showed that Chipley was murdered between 9 and 9:15 p. m. on December 27, 1954, and that a wallet containing several hundred dollars in bills of large denomination was taken from him. About 11 o'clock that same evening, petitioner appeared at one Cecil Maddy's house in Greenfield, some 80 miles from Troy, looking for Maddy. He was told that Maddy was in town. One Purdin, an employee of Maddy, testified that petitioner came to the smoke shop operated by Maddy about 12 o'clock midnight and picked up a check he had previously written, giving Purdin a 50-dollar bill. Purdin testified also that petitioner gave him a snub-nosed Colt revolver and asked him to return it to Maddy. The testimony of the state's witnesses then showed the following sequence of events:

Petitioner went to Ada's bar where he met Maddy in a back room. Maddy's wife testified that petitioner at that time was wearing an air-force jacket, that she brought their car to the back of the building, that petitioner and Maddy disappeared, returning to Ada's about 30 to 45 minutes later, and that petitioner had changed clothes during such time. She testified also that they stayed in the bar until it closed and then went to Maddy's house, and that petitioner then became sick and went to bed. She testified that her husband called her the next day and told her to burn the air-force jacket and trousers which were at the house, and that petitioner asked her to burn them.

Maddy's son testified that he was in bed on the night of the murder, when he heard his father and another man come in, and that he stayed in bed and did not see the man accompanying his father. He testified further that they stayed for about a halfhour and left. He then got up and in going into the bathroom found and air-force jacket and a wallet containing Chipley's driver's license in the pocket of the jacket. He then went into the bedroom where he saw his father's snub-nosed gun lying on the bed, with three chambers fired.

Mrs. Maddy testified as follows:

'Q. Did you have any conversation with Mr. McMullen at that time? A. I walked in and he looked at me, he was holding up his left hand, and he said--you want me to say his exact words?

'Q. What was his exact words? A. He said 'The son-of-a-bitch pulled a rod on me but I don't think he will be able to pull it on anyone else.'

'* * *

'* * * He [petitioner] said 'That's right, Mrs. Maddy.' I said 'Have you heard the news?' and he said 'That's right, I have read the paper.' I said 'Eddy, is this what you did?' and his face shook and he turned white and he said 'Yes, I had to, Mrs. Maddy. It was me or him. He pulled a rod on me and it was my life or his.'

'* * *

'Q. How do you know it was your husband's [snub-nosed] gun that was used here in Troy? A. He told me it was.

'Q. How long after December 27 did he tell you this? A. He told me the next night.'

She testified further that shortly after the murder her husband gave her $710 to give to the petitioner, telling her that he had been holding it for him.

The state introduced also the testimony of a boy who had been visiting at Chipley's residence on the night of the murder. This residence was close to the concrete block building where Chipley was murdered. The boy testified that immediately after the shots, while standing on the back porch of Chipley's home, he saw a man come out of the building. He had picked petitioner out of a lineup as a man who resembled the one who had left the building after the shots were fired.

In addition to this evidence, the state introduced evidence of a polygraph test to which petitioner had submitted by agreement of his counsel. The results of this test indicated that petitioner was guilty of the robbery and murder of Chipley.

No murder weapon was introduced by the state. It was apparently the state's theory that petitioner had borrowed Cecil Maddy's snub-nosed Colt 38 and had used it in the perpetration of the murder. A snub-nosed Colt 38 was introduced into evidence as a gun similar to the one petitioner allegedly carried on the night of the murder. A snub-nosed revolver was the only weapon referred to by the state in its evidence.

In her statement to the police, Mrs. Maddy said that her husband had thrown his gun, the snub-nosed 38, into the creek.

On behalf of petitioner, evidence of an alibi was presented. Petitioner contended that on the night of the murder he was with his wife visiting her sister at Rainsboro, some 100 miles from Troy. Several witnesses testified as to this, primarily relatives of petitioner's wife who were present at her sister's house that night. There was testimony of a neighbor of the sister which corroborated this story. Although there were minor inconsistencies in their stories, they were no greater than could be expected after the lapse of a year. Petitioner presented also as a witness a filling station operator who testified that on the evening of the murder a young man stopped at his station and inquired as to the whereabouts of Chipley's store. He testified that petitioner was not the boy who stopped, that the boy was not over five feet, five inches in height, and that petitioner was much taller than that. He testified also that the boy who stopped at his station had short dark hair. The evidence shows that petitioner's hair ir sandy.

The filling station operator testified that he called the police the next morning and reported this fact.

This then was the evidence presented at petitioner's trial for murder.

So far as the suppression of evidence is concerned, the evidence in this habeas corpus case establishes the following facts:

That as early as June 1955, prior to petitioner's arrest, the police had in their possession a gun and a ballistics report from London, which showed that at least...

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    ...the judgment of conviction, and hence could not reasonably be said to have been ... waived.” Id. at 107 (citing McMullen v. Maxwell, 3 Ohio St.2d 160, 209 N.E.2d 449 (1965)). It appears that Post could not have asserted this claim until his post-conviction discovery of evidence indicating t......
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