Brooks v. Perini, Civ. No. C 73-218.

• Decision Date: 29 November 1973
• Docket Number: Civ. No. C 73-218.
• Citation: 384 F. Supp. 1011
• Parties: Obie BROOKS, Petitioner, v. E. P. PERINI, Superintendent Marion Correctional Institution, Respondent.
• Court: U.S. District Court — Northern District of Ohio

384 F. Supp. 1011

Obie BROOKS, Petitioner, v. E. P. PERINI, Superintendent Marion Correctional Institution, Respondent.

Civ. No. C 73-218.

United States District Court, N. D. Ohio, W. D.

November 29, 1973.

Obie Brooks, pro se.

Leo J. Conway, Asst. Atty. Gen., Columbus, Ohio, James G. Carr, Univ. of Toledo Coll. of Law, Toledo, Ohio, for respondent.

OPINION

DON J. YOUNG, District Judge.

This cause came to be heard on a petition for a writ of habeas corpus. The petitioner is presently incarcerated in the Marion Correctional Institution, Marion, Ohio pursuant to a conviction under § 2901.05, Ohio Revised Code, for second degree murder. The petitioner was tried before a three-judge panel of the Court of Common Pleas of Summit County, Ohio.

The petitioner appealed his conviction in the Court of Appeals of Summit County, Ohio, which affirmed the conviction following oral arguments. The petitioner subsequently filed a notice of appeal and memorandum in support of jurisdiction in the Supreme Court of Ohio. The Supreme Court of Ohio denied petitioner's request for leave to appeal from the judgment of the Summit County Court of Appeals.

The petitioner in his petition alleges five bases to support his petition for a writ of habeas corpus, (1) denial of a fair trial and due process of law when the trial court admitted testimony of witnesses where the prosecutor had failed to provide defense counsel the prior statements of those witnesses until 3:30 P.M. the day before trial was scheduled to commence although the trial judge had ordered the disclosure of all such statements; (2) denial of a fair trial and due process because the trial judge refused to grant a continuance for defense counsel to study the statements of the prosecution witnesses presented to the petitioner the day before the trial; (3) denial of a fair trial and due process because the prosecutor withheld certain statements and evidence which would tend to exculpate the petitioner; (4) denial of a fair trial and due process when the trial court admitted testimony concerning statements made by petitioner which contravenes Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); and (5) denial of due process of law by the Ohio Supreme Court when it referred oral arguments of petitioner's appeal to a master commissioner.

I.

Initially, the respondent contends that the petitioner has failed to exhaust his state remedies because the petitioner has not utilized the provisions of § 2953.21 et seq., Ohio Revised Code (Ohio's post-conviction relief act). The Court, however, finds that the petitioner has exhausted his available state court remedies required by 28 U.S.C. § 2254(b) and (c) as interpreted by Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). The petitioner has previously presented all the federal constitutional claims in his petition to the highest state appellate court as indicated by the Brief of Petitioner submitted to the Ohio Supreme Court (Exhibit III(V) to Respondent's Answer to the Show Cause Order of this Court). As indicated by Picard v. Connors, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971), a state prisoner need only have presented his constitutional claims to the highest state court to meet the exhaustion requirements of 28 U.S.C. § 2254. This Court stated in Howell v. Perini, Civil No. 73-248 (N.D.Ohio, filed September 21, 1973) that when a state prisoner has once presented his federal constitutional claims to the highest court on an appeal of right, and the state courts have had an opportunity to pass on those claims, the petitioner need not pursue the additional procedures available under § 2953.21 et seq., Ohio Revised Code, before presenting to the federal courts his constitutional claims by means of a writ of habeas corpus.

II.

The Court passes only upon petitioner's claim regarding the alleged denial of a fair trial and due process of law when the trial court admitted a statement made by the petitioner which contravenes Miranda v. Arizona, supra, since the Court believes this issue requires the issuance of the writ. Accordingly, the other issues presented by the petitioner are not here considered.

The facts giving rise to this constitutional claim are sufficiently clear from the transcript of the hearing on the motion to suppress and the trial, so that no hearing is required in this Court. The petitioner received a full and fair evidentiary hearing in the state court presenting the relevant facts. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 170 (1963).

Petitioner's claim of a violation of his Miranda rights comes from the introduction into evidence at his trial of a transcript of a recorded statement that the petitioner gave to the authorities concerning the events of the shooting of one Robert J. Mann. The facts supporting this claim are not in dispute. It appears from the transcript of the suppression hearing and the trial that the petitioner was taken into custody by Officers Everett Peasley and Robert Farmer of the Akron Police Department at approximately 10 or 10:30 A.M. on November 9, 1971, (Tr. Vol. I, 19, 42; Vol. II, 189, 303) who thereafter transported petitioner to the police station and placed him in an interrogation room (Tr. Vol. I, 19, 45; Vol. II, 190). The statement at issue was made after petitioner had been placed under arrest but prior to being "booked" on charges of first degree murder. (Tr. Vol. I, 25; Vol. II, 196). The petitioner was advised of his Miranda rights by the arresting officers prior to being interrogated concerning the shooting death of Robert J. Mann. (Tr. Vol. I, 19-20, 46, 54; Vol. II, 190-91, 304-05). There is a conflict in the testimony between the petitioner and the police officers as to whether the petitioner made an oral statement to the police officers prior to making the recorded statement concerning the same events as appears in the controverted statement. The petitioner stated that he made no oral statement to the officers prior to his recorded statement at issue. (Tr. Vol. I, 47; Vol. II, 304). Officer Peasley, on the other hand, testified at the trial that the defendant responded prior to the recorded interview to questions about the events of the shooting. (Tr. Vol. II, 192). This dispute is of little consequence as petitioner's claim goes to the introduction of the recorded statement. In any event, the arresting officers subsequent to some preliminary conversations with the petitioner summoned the Assistant County Prosecutor Charles Lowrey to conduct the recorded interrogation in question. (Tr. Vol. I, 36-37; Vol. II, 196). Prosecutor Lowrey proceeded to conduct the interview at which the two arresting officers were also present. (Tr. Vol. I, 30, 47, 55-56; Vol. II, 192-94). The County Prosecutor, before beginning his interrogation, advised the petitioner of his constitutional rights as established in Miranda. (Tr. Vol. I, 31, 57, 59-60).

At this critical point, the parties to the interview have confused recollections about the events that transpired during the interrogation. Unfortunately, the transcript of the interrogation was not presented to this Court, so the Court has had to reconstruct the pertinent parts from the transcripts presented. The petitioner stated at the hearing and the trial that the prosecutor asked him to make a statement, and that he started on it and then he stopped because he wanted a lawyer and communicated this desire to the prosecutor. Petitioner related that the prosecutor stated he would call the judge and try to arrange to get the petitioner a lawyer, and the prosecutor then immediately left the room for fifteen minutes. Upon returning, according to the petitioner, the prosecutor told the petitioner that he could not get in contact with the judge. The petitioner then testified that the prosecutor again began to question him and that he answered some of the prosecutor's questions but after about five or ten minutes the petitioner again requested the presence of a lawyer. The prosecutor, according to Brooks, once again left the room and upon his return told the petitioner that he had reached the judge but that he could not contact a lawyer. Petitioner then testified that after being informed by the prosecutor that he could not contact a lawyer, the prosecutor again read him the Miranda warnings. (Tr. Vol. I, 47-52; Vol. II, 305-06). At this point the transcript of the petitioner's examination at the suppression hearing is as follows:

Q All right. I am interested in what happened when the prosecutor came back?

A He told me that he had reached the Judge but that he couldn't reach the lawyer.

Q And what did you say to that?

A I don't remember the exact words.

Q Did they start taking your statement at that time?

A Yes, after he read me my rights again.

Q He read them to you?

A Yes.

Q And what did you answer when you got down to the part where, "If you cannot afford to hire a lawyer, one will be appointed for you before any questioning and the State will pay them." And he asked you if you understood that and your answer was, "Yes." ?

A Yes.

Q All right. And another question was, "Having all of these rights in mind, do you wish to talk without an attorney?" And you said, "Yes, I will talk to you." You also said, "I would like to have one, but since there is none, it's all right." Now, why did you say that?

A This is prior to that statement I made; that is when he said that he couldn't get a lawyer. And this was the purpose of the statement.

Q What do you mean, the purpose of the statement?

A I said it because they were trying to get me a lawyer. This is what I was told. And so, since they couldn't get a lawyer, this is the purpose of the statement. This is why I made the statement.

Q But, you did want an attorney at that point?

A I most certainly did. (Tr. Vol. I, 51-52).

Prosecutor Lowrey indicated the following at the suppression hearing:

Q Do you recall a conversation to Mr. Brooks to the

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