Lewis v. Cardwell

• Citation: 354 F. Supp. 26
• Decision Date: 19 May 1972
• Docket Number: Civ. A. No 71-76.
• Parties: Arthur Ben LEWIS, Jr., Petitioner, v. Harold J. CARDWELL, Warden, et al., Respondents.
• Court: U.S. District Court — Southern District of Ohio

354 F. Supp. 26

Arthur Ben LEWIS, Jr., Petitioner, v. Harold J. CARDWELL, Warden, et al., Respondents.

Civ. A. No 71-76.

United States District Court, S. D. Ohio, E. D.

May 19, 1972.

COPYRIGHT MATERIAL OMITTED

Bruce A. Campbell, Campbell, Boyland & Schwarzwalder, Columbus, Ohio, for petitioner.

William J. Brown, Atty. Gen., Jeffrey L. McClelland, Asst. Atty. Gen., Columbus, Ohio, for respondents.

OPINION AND ORDER

KINNEARY, District Judge.

Petitioner, a state prisoner, brings this action for a writ of habeas corpus under the provisions of Title 28, United States Code, Section 2241(c)(3).

This matter is before the Court on the petition, return of writ, briefs and exhibits of the parties, the bill of exceptions in State v. Arthur Ben Lewis, Jr., No. 3952 (Delaware Cty.C.P.Ct.1968) and an evidentiary hearing held on April 20, 1972.

On November 8, 1967, the Delaware County Grand Jury returned an indictment charging petitioner with the crime of murder in the first degree. He was tried before a jury on March 4-21, 1968, and found guilty with the recommendation of mercy. On March 29, 1968, he was sentenced to life imprisonment in the Ohio Penitentiary.

Petitioner appealed to the Fifth District Court of Appeals for Delaware County which affirmed the judgment of conviction. He then appealed to the Ohio State Supreme Court which, in State v. Lewis, 22 Ohio St.2d 125, 258 N.E.2d 445 (1970), also affirmed the judgment of conviction.

Petitioner alleges that he is in the custody of respondent in violation of the Constitution of the United States, in that:

1. His arrest was unlawful because it was predicated upon a warrant that had issued under §§ 2935.09, 2935.10, 2935.17 and 2935.19 of the Ohio Revised Code, which sections are unconstitutional on their face in that they:

a) fail to provide that a judicial determination be made prior to issuance of a warrant;

b) fail to provide that facts be set forth in the affidavit that would permit an impartial judicial determination as to the existence of probable cause for issuance of the arrest warrant;

c) fail to require the officer to state his source, or to aver that such source had previously been reliable.

The subsequent eliciting of the petitioner's statements and the seizure of his automobile incident to the arrest when entered as evidence in the trial of this cause served as a basis for his conviction, contravening the petitioner's rights under the Fourth and Fourteenth Amendments.

2. His interrogation and subsequent arrest and seizure of his automobile by a vigilante committee (Division of Criminal Activities—ostensibly at the direction of Deputy Sheriff Lavery) was in violation of his right of Fourteenth Amendment's procedural due process, where such committee, assigned by the Ohio Attorney General, was, in actual point of law, operating without legal authority where the Attorney General had no such statutory appointive powers and the subsequent seizure of evidence as a result of this action by the Attorney General when entered as evidence during the trial of this matter served as a basis for petitioner's conviction.

3. His Fifth Amendment rights were infringed where the vigilante committee (Division of Criminal Activities) summoned the petitioner to the Office of the Attorney General, initiated an interrogation of the petitioner prior to having given him the warning required by Miranda, and that when the purported warning was given, he was not apprised of certain facts, i. e., that anything said can and will be used against him in court, or that an arrest warrant had been issued for his arrest, or that his conversation, prior to the warning as well as after, was being monitored by a hidden electronic eavesdropping apparatus thereby denying the petitioner his Sixth Amendment right to counsel during a critical stage of the proceedings, and the surreptitiously acquired statement when entered as evidence in the trial of the cause served as a basis of his conviction.

4. He was deprived of a fair trial where after the trial court overruled State's Exhibit 111, the trial court erred in permitting the State to present into evidence the hearsay contents of the exhibit in toto, by means of a witness for the State reciting verbatim therefrom; such testimony serving as a basis for conviction and violation of petitioner's rights under the Sixth and Fourteenth Amendments.

5. The warrantless seizure of his automobile, parked on a private lot one-half block from site of his arrest, for purpose of ascertaining as to whether said automobile had been an instrumentality of the crime, violated Fourth Amendment prohibition where such seizure was justified only after the seizure; (in theory of the State's case), further, the automobile was not seized contemporaneous in time and place with petitioner's arrest, and evidence seized therefrom served as a basis of his conviction.

6. He was deprived of any chance he may have had for a fair trial where a woman, whom the State alleged, by pre-trial press releases, was his `second wife', was issued a subpoena by the State in such flamboyant manner as to maximize newspaper, radio and television coverage and, where, this `witness' was never called to testify; and where the State with manifest intent, branded the petitioner as a `beast' in the eyes of the jurors, by parading her through the courtroom after the jury was seated, and kept her within the eyesight of the jury by the seating arrangement provided by the State of Ohio; hence, the misconduct by the Office of the Prosecuting Attorney in perpetuating the prejudicial publicity which was crucial to, and denied the petitioner's right to a fair trial and served as a basis of his conviction by denying him the right of due process under the Fourteenth Amendment.

7. Hearsay evidence of the most flagrant kind was adverted to with the manifest intent of depriving him of his right to a fair trial where the contents of an unrelated telephone call was admitted under the trial court's misinterpretation of the hearsay rule and constituted a deprivation of petitioner's right of confrontation and cross examination under the Sixth Amendment.

8. His right to a fair and impartial trial by a jury free of prejudice was impaired where evidence, known to be incompetent when offered, was wrongfully admitted for consideration of the jury and served as a basis of conviction violating the petitioner's constitutional rights as provided by the Fourteenth Amendment.

9. The trial court's arbitrary limitation as to scope allowed in the direct examination of a defense witness militated against the fairness of the trial and served as a basis of his conviction, depriving him of his Sixth Amendment right to effective assistance of counsel and his Fourteenth Amendment's right to due process.

10. The trial court's denial of his Motion for a New Trial based upon newly discovered evidence was a flagrant abuse of the discretion lodged in that court and served to perpetuate petitioner's imprisonment for a crime of which he is innocent, denying him due process under the Fourteenth Amendment.

Each of the claims for relief will be considered below.

First, the Court will summarize the relevant facts underlying the judgment of conviction as they appear in the bill of exceptions in State v. Arthur Ben Lewis, Jr., No. 3952 (Delaware Cty.C. P.Ct.1968) and as found by this Court after the evidentiary hearing.

On July 19, 1967 at approximately 2:35 p. m., the body of Paul Radcliffe was found in the brush along the bank of the Olentangy River near the old Tilton building in Delaware County, Ohio. Radcliffe had been killed by multiple pellet wounds of the chest, right arm and right hip.

Delaware County Deputy Sheriffs arrived on the scene shortly after the discovery of the body. They, together with employees of the Bureau of Criminal Investigation and Identification (BCI), investigated the murder scene. Radcliffe's automobile, a 1963 Oldsmobile, was found over the bank of the Olentangy River in the brush near the victim. No weapon was found.

The investigators made casts of tire tracks found at the scene.¹ They also removed foreign paint scrapings from the right rear bumper and fender of Radcliffe's car.

Delaware County Sheriff Eugene Jackson requested the assistance of the Division of Criminal Activities of the Office of the Attorney General of Ohio to investigate the murder. In the succeeding months, the investigation was conducted by Delaware County Deputy Sheriff William Lavery and Chief Investigator Clyde Mann of the Division of Criminal Activities.

Early in the investigation it was learned that in May of 1967 a Columbus businessman, Jack Smith, had become interested in purchasing a business owned by petitioner, Graham's Auto Specialists. They had entered into a contract of purchase at $30,000.00 with a closing date of July 22, 1967. Smith employed Paul Radcliffe, an accountant, to look at petitioner's books for Graham's Auto Specialists.

On July 24, 1967, Deputy Lavery talked with petitioner at Graham's Auto Specialists. Lavery testified at the evidentiary hearing that he considered petitioner a suspect from that time forward.

Mann and Lavery talked with petitioner again on September 28, 1967. At this time the investigation had focused in on petitioner as the prime suspect. Mann called petitioner on October 9, 1967 and requested that he come to the offices of the Division of Criminal Activities at 40 S. 3rd Street, Columbus, Ohio for additional questioning.

On the morning of October 10, 1967 at approximately 8:00 a. m., Deputy Lavery appeared before Delaware County Municipal Judge Thomas C. Clark and filed the following affidavit in support of an arrest warrant:

Before me, a Notary Public, personally came William B. Lavery, Deputy Sheriff, who, being duly sworn according to law, deposes and says, that one Arthur Ben Lewis, Jr., on or about the 19th day of July, 1967, at or about the hour of nine o'clock, A.M., within the

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