Childs v. Cardwell

• Decision Date: 10 December 1971
• Docket Number: No. 71-1103.,71-1103.
• Citation: 452 F.2d 541
• Parties: Joe Willie CHILDS, Petitioner-Appellee, v. Harold J. CARDWELL, Warden, Ohio State Penitentiary, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

452 F.2d 541 (1971)

Joe Willie CHILDS, Petitioner-Appellee, v. Harold J. CARDWELL, Warden, Ohio State Penitentiary, Respondent-Appellant.

No. 71-1103.

United States Court of Appeals, Sixth Circuit.

December 10, 1971.

Leo J. Conway, Asst. Atty. Gen., Columbus, Ohio, for respondent-appellant; William J. Brown, Atty. Gen., Jeffrey L. McClelland, Asst. Atty. Gen., Columbus, Ohio, on brief.

Donald F. Kelch, Jr., Columbus, Ohio, for petitioner-appellee; Mayer, Tingley, Hurd & Emens, Columbus, Ohio, on brief.

Before PHILLIPS, Chief Judge, WEICK, Circuit Judge, and CECIL, Senior Circuit Judge.

WEICK, Circuit Judge.

Appellee, Joe Willie Childs, was convicted by a jury in the Common Pleas Court of Franklin County, Ohio, on May 14, 1964, on counts of an indictment charging him with armed robberies and assault with intent to kill. He was sentenced to consecutive terms in the Ohio state penitentiary.

One of the robberies was of the Miller Market in Columbus, Ohio, on December 17, 1963. The Miller Market was owned by Harold Johnson and operated by him and his wife, Evaline Gay Johnson. During the robbery Mr. Johnson was shot and wounded by one of the two robbers.^* The bullet creased Johnson's cheek bone, fracturing it and his jaw bone in two places, and rendering him unconscious. Childs was positively identified by both Mr. and Mrs. Johnson as one of the robbers. The store was well lighted.

The other robbery took place in Simon's Market in Columbus, Ohio, two days later, on December 19, 1963. Two employees of the Market, Sandra Sue Sullivan and her husband, Ray Sullivan, positively identified Childs as one of the robbers. This store also was well lighted. The other robber was Robert Jarrett, who entered a plea of guilty and was sentenced to imprisonment in the Ohio state penitentiary. The state subpoenaed Jarrett from the penitentiary and he was present at the trial, but he was not called as a witness by either the state or Childs.

Detective Fred Jansen testified as to a statement made to him by Jarrett in the presence of Childs, as follows:

"A . . . I called Mr. Jarrett\'s attention to the night of the 19th of December and the Simon\'s robbery. I asked him if he was one of the two men involved in this robbery, and he said that he was; I asked him at the time could he name the second man involved with him and he said that he could and he indicated the man seated in the room with him. I asked him who that man was and he said `Willie Joe Childs.\'" (App. 119a)

Jansen further testified that Childs, at this confrontation with Jarrett, denied that he participated in the robbery.

Child's court-appointed attorney made no objection to this testimony and cross-examined Jansen.¹

The defense was an alibi. Defendant called his mother and stepfather, who lived in the same house with him, and also three friends, two of whom lived in the same house.² Childs testified in his own defense. On cross-examination he admitted that he was convicted of burglary in 1959 and sentenced to the penitentiary, and that he was convicted of uttering a forged check in 1962 and again sentenced to the penitentiary.

Child's conviction in the present case was affirmed by the Court of Appeals of Franklin County, Ohio, and by the Supreme Court of Ohio, with one Judge dissenting. The Supreme Court of the United States denied certiorari. State v. Childs, 14 Ohio St.2d 56, 236 N.E.2d 545 (1968), cert. denied, 394 U.S. 1002, 89 S.Ct. 1596, 22 L.Ed.2d 779 (1969).

Childs then filed in the United States District Court an application for a writ of habeas corpus, claiming that his constitutional rights had been violated in a delay of 121 days in the appointment of counsel for him, while he was incarcerated in jail without bond, and in the admission of hearsay evidence at the trial. These identical issues were presented to the Supreme Court of Ohio and resolved against Childs by that Court.

The District Court, 320 F. Supp. 1365, reviewing the trial record, found no prejudice to Childs in the delay in the appointment of counsel. The District Court found, however, that the testimony of Detective Jansen was hearsay, and that it deprived Childs of his right of confrontation in violation of the Confrontation Clause of the Sixth Amendment. The Court granted the writ unless the state should proceed to try Childs within sixty days.

We agree with the decisions of the Supreme Court of Ohio and the District Court with respect to the first ground, that Childs was not prejudiced by the delay in the appointment of counsel. Only the second ground requires our discussion.

In its opinion, the Supreme Court of Ohio, addressing itself to the hearsay issue said:

"The problem with this question of law is that counsel for the defendant did not object when that testimony was given, and he did nothing thereafter to call the attention of the trial court to this alleged hearsay error. It is a general rule that an appellate court will not consider any error which counsel for a party complaining of the trial court\'s judgment could have called but did not call to the trial court\'s attention at a time when such error could have been avoided or corrected by the trial court. Paragraph one of the syllabus of State v. Glaros, 170 Ohio St. 471 , 166 N.E.2d 379. We do not believe that defendant has shown adequate reasons to disregard this rule.

"Defendant asserts that his constitutional right of confrontation of the witnesses against him was denied by the admission of this hearsay. This deprivation is not peculiar to this case, as it would seem to be the obvious result of the admission of hearsay in any criminal case where the declarant was not put on the stand or otherwise subject to cross-examination. Constitutional rights may be lost as finally as any others by a failure to assert them at the proper time. State v. Davis, 1 Ohio St.2d 28 , 203 N.E.2d 357.

"The legitimate state interest in requiring timely objection to improper evidence has been well recognized by courts, including the United States Supreme Court. Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed. 2d 934 Henry v. Mississippi, 379 U.S. 443 , 85 S.Ct. 564, 13 L.Ed.2d 408. This interest is founded on the desirability of avoiding unnecessary delay and discouraging defendants from making erroneous records, allowing them an option to take advantage of favorable verdicts or to avoid unfavorable ones. Unlike the case of Henry v. Mississippi, supra, the state interest was not served here by any motion or objection which would call the attention of the trial court to the error that is urged.

"In view of the considerations above and the additional fact that the hearsay evidence was corroborated by two eyewitnesses who testified at the trial, we do not believe defendant has discredited the fairness of his trial or otherwise given sufficient justification for disregarding the requirement of timely objection." (14 Ohio St.2d at 61-62, 236 N.E.2d at 549)

In State v. Davis, 1 Ohio St.2d 28, 203 N.E.2d 357 (1964), Chief Justice Taft said:

"Defendant contends that Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, requires this court to reverse his conviction because those suits were erroneously admitted in evidence against him.

"However, footnote 9 to the majority opinion in Mapp states:

"`As is always the case . . ., state procedural requirements governing assertion and pursuance of direct and collateral constitutional challenges to criminal prosecutions must be respected.\'" (Id. at 30, 203 N.E.2d at 359)

"In our opinion, protection of a defendant does not require giving him such a procedural advantage over the state. Cf. State v. Glaros (1960), 170 Ohio St. 471, 166 N.E.2d 379, where a defendant was not permitted to rely upon an error which counsel for the defendant could have called but did not call to the court\'s attention at a time when such error might have been avoided or corrected." (Id. at 31, 203 N.E.2d at 360)

It is apparent to us that the state has insisted on compliance with its procedural requirements.

In Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965), the Court in an opinion written by Mr. Justice Brennan recognized the "familiar principle that this Court will decline to review state court judgments which rest on independent and adequate state grounds, even where those judgments also decide federal questions." The principle applies in cases involving both state substantive and procedural grounds. Also, ". . . we neither hold nor even remotely imply that the State must forgo insistence on its procedural requirements if it finds no waiver." Id. at 452, 85 S.Ct. at 570.

Ohio certainly has an interest in requiring a litigant in its courts to object to evidence which he contends is incompetent and inadmissible in order that the trial court may have opportunity to pass thereon and correct any error. It is not fair to the trial court for issues to be raised for the first time in the appellate court. Proper practice would require defense counsel, if he desired to question the admissibility of the testimony of Detective Jansen, to have interjected an objection to it and to have moved for a mistrial. He did neither.

Adverting to the so-called hearsay testimony of Detective Jansen, it should be noted that Jansen was cross-examined on it by defense counsel. In addition, the state produced Jarrett in court and he could have been called by the defense as a witness and cross-examined as a "hostile witness." United States v. Holsey, 414 F.2d 458 (10th Cir. 1969); United States v. Ghaloub, 385 F.2d 567 (2d Cir. 1966); United States v. Duff, 332 F.2d 702 (6th Cir. 1964); Union Pac. R. R. v. Ward, 230 F.2d 287 (10th Cir. 1956); Gariepy v. United States, 189 F.2d 459 (6th Cir. 1951).

This is the rule in Ohio and is applied generally. 56 Ohio Jur.2d Witnesses § 305, p. 734; 58 Am.Jur. Witnesses § 618, p. 342; 98 C.J.S. Witnesses § 333, p. 47.

We do not hold that either the state or...