Hutchison v. Marshall
| Decision Date | 20 October 1983 |
| Docket Number | No. C-3-83-006.,C-3-83-006. |
| Parties | Joseph HUTCHISON, Petitioner, v. R.C. MARSHALL, Warden, Respondent. |
| Court | U.S. District Court — Southern District of Ohio |
Thomas A. Schaffer, Dayton, Ohio, Joel Hirschhorn, Miami, Fla., for petitioner.
Karen A. Kolmacic, Asst. Atty. Gen., Columbus, Ohio, for respondent.
DECISION AND ENTRY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS; TERMINATION ENTRY
This case, a petition for writ of habeas corpus brought by a state prisoner pursuant to 28 U.S.C. § 2254, presents novel and interesting questions concerning the alleged infringement of an accused's right to a speedy trial by certain actions taken by three local television stations. Having received Respondent's Return of Writ (doc. # 8), this matter is currently before the Court to "determine whether an evidentiary hearing is required" and if not, to "make such disposition of the petition as justice shall require." 28 U.S.C. § 2254, Rule 8(a). Oral argument was heard on the petition on May 19, 1983.
A review of the record reveals the following facts, which are not disputed by the parties.1 On May 27, 1980, the Montgomery County (Ohio) Grand Jury returned an indictment against Petitioner, charging him with one count of aggravated burglary, in violation of Ohio Rev.Code Ann. § 2911.11(A)(3), one count of felonious assault, in violation of Ohio Rev.Code Ann. § 2903.11(A)(1), and one count of aggravated murder, in violation of Ohio Rev.Code Ann. § 2903.01(B). Upon arraignment, Petitioner entered pleas of not guilty and not guilty by reason of insanity, and the case was set for a jury trial.
On August 21, 1980, Petitioner filed a motion to exclude television cameras from the courtroom during his upcoming trial. Such coverage of trials by the broadcast media is permissible, subject to restrictions which may be imposed by a trial judge, under Ohio Rule of Superintendence 11 and Canon 3 A(7)(c) of the Code of Judicial Conduct. See State ex rel. Grinnell Communications Corp. v. Love, 62 Ohio St.2d 399, 406 N.E.2d 809 (1980) (per curiam). The trial judge held evidentiary hearings on the motion on September 9th and 12th (1980), which apparently consisted primarily of the testimony, and cross-examination, of a psychologist. On September 22, 1980, the trial judge sustained the motion, on the basis that the television coverage would adversely affect Petitioner's conduct in open court. See State ex rel. Miami Valley Broadcasting Corp. v. Kessler, 64 Ohio St.2d 165, 166, 413 N.E.2d 1203, 1204 (1980) (per curiam).
Three local television stations2 then filed proceedings in mandamus and in prohibition in the Ohio Supreme Court on September 25, 1980, seeking to overturn the trial judge's decision. The Supreme Court temporarily granted the writ on September 30, 1980, the day the judge began selecting a jury for petitioner's trial. The trial judge then continued the case. He subsequently journalized an entry to that effect on November 13, 1980. Motions to dismiss the petition for writs by the trial judge and by the Petitioner, as intervenor, were denied by the Supreme Court on October 29.3
On December 23, 1980, the Ohio Supreme Court issued a decision on the merits, continuing the writ of prohibition, and ordering the trial judge to conduct a new and more complete evidentiary hearing on the issue of television coverage. State ex rel. Miami Valley Broadcasting Corp. v. Kessler, supra. On December 30, 1980, Petitioner first raised the issue of the denial of his rights to a speedy trial (under the Sixth Amendment to the Constitution, and Ohio law) before the trial judge, moving to discharge the indictment on those grounds.
While the trial judge held the new evidentiary hearing on January 17, 1981, the television stations presented no additional evidence. The judge again adopted his previous ruling, excluding broadcast coverage of the trial. In fact, no such coverage occurred. A jury trial commenced on January 26, 1981, on which day the trial judge overruled Petitioner's motion. The jury convicted Petitioner of aggravated murder and felonious assault on February 6, 1981, and he was sentenced on March 5, 1981, to a life term for the former offense and 3 to 15 years for the latter offense, both terms to be served consecutively.
Petitioner appealed the judgment of conviction to the Ohio Court of Appeals for the Second District, in which he raised, inter alia, the errors that his rights to a speedy trial (under the Sixth Amendment to the Constitution and Ohio Rev.Code Ann. § 2945.71) and to due process (under the United States and Ohio Constitutions) had been violated by the delay in his trial. The appellate court affirmed the conviction and rejected the above-stated claims, holding that "the record in this case demonstrates the necessity and reasonableness of the continuance of the trial from October 1, 1980 to January 26, 1981." Ohio v. Hutchison, Case No. CA7228 (Ct.App. Montgomery County, December 11, 1981), slip op. at 5. Petitioner then appealed to the Ohio Supreme Court, which dismissed the appeal on March 24, 1982, as lacking a substantial constitutional question. He thereafter filed this habeas petition.
In this Court, Petitioner alleges that the aforementioned conduct of his trial violated his rights to a speedy trial, to due process, and to equal protection. These assertions are considered seriatim.
Cain v. Smith, 686 F.2d 374, 381 (6th Cir. 1982) (citing Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972)).
As the parties emphasize, this case presents the speedy trial issue in a unique fact situation, and they have not cited (nor has the court found) any published case law even remotely analogous. Cf. Geagan v. Gavin, 181 F.Supp. 466, 471 (D.Mass. 1960) (Wyzanski, J.) (), aff'd, 292 F.2d 244 (1st Cir.1961), cert. denied, 370 U.S. 903, 82 S.Ct. 1247, 8 L.Ed.2d 399 (1962). Despite the uniqueness of the fact pattern, the Court agrees with Respondent that the Barker v. Wingo criteria are the most appropriate tests to measure of the validity of Petitioner's Sixth Amendment claims.
Regarding the first criterion, some eight (8) months elapsed between Petitioner's indictment and his trial; about four of those months were due to the resolution of the broadcast coverage controversy. The delay factor is to some extent a "triggering mechanism," and the delay must be "presumptively prejudicial" to even bring the remaining three factors into play. Barker v. Wingo, 407 U.S. at 530, 92 S.Ct. at 2192. "Whether the delay is presumptively prejudicial is principally determined by the nature and complexity of the crime." Cain v. Smith, 686 F.2d at 381. Here, the charges against Petitioner were indeed "very serious", Respondent's Return of Writ, doc. # 7, p. 13, but the trial does not appear to have been overly complex. Quite frankly, the trial was set to commence four months after the indictment; the remaining time, of course, was not due to preparation for trial by either side. While the issue is close, the Court will assume that the eight-month delay was presumptively prejudicial.
The second factor — the reasons for the delay — will turn largely on the prosecution's efforts to try the accused. Cain v. Smith, 686 F.2d at 382-83. Here, Respondent points out that Petitioner's motion on August 21, 1980, triggered the broadcast coverage controversy, and concludes that "the entire period of delay involved is chargeable to" Petitioner. Respondent's Return of Writ, doc. # 7, p. 14. The Court cannot agree. It is perhaps true, in the proximate cause sense, that the delay from October, 1980 through January, 1981 would never have occurred had not Petitioner moved to exclude broadcast coverage of his trial. But that period of delay is, in fact, attributable to the three television stations and the Ohio Supreme Court, not to either Petitioner or Respondent. There is simply no indication in the record, or in the arguments of counsel, that the prosecution "caused" or "allowed" this delay to occur, to prejudice Petitioner or for any other reason.
The third factor — Petitioner's assertion of his speedy trial right — will depend on the "timeliness, vigor, and frequency with which the right" is asserted. Cain v. Smith, 686 F.2d at 384. Here, Petitioner formally asserted his speedy trial rights on December 30, 1980, after the Ohio Supreme Court's decision on the merits, and with only about one month of the entire time of delay left. However, Petitioner did raise this issue in his unsuccessful motion to dismiss or intervene in the broadcaster's writ to the Ohio Supreme Court, which motions were denied in late October. Given the pendency of the action in the Ohio Supreme Court, it is perhaps understandable that Petitioner's counsel did not assert the right before the trial court until the Supreme Court's decision. Accordingly, Petitioner was not dilatory in raising his speedy trial rights.
Finally, the existence of prejudice to an accused will depend on the extent of his pretrial incarceration, his anxiety and concern, and the impairment of his defense. Cain v. Smith, 686 F.2d at 384-85. Here, as...
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Hutchison v. Marshall
...and to equal protection. The District Court, in a thoughtful, well-reasoned published opinion, denied the writ. Hutchison v. Marshall, 573 F.Supp. 496 (S.D.Ohio 1983). We On appeal petitioner does not claim that the Ohio courts violated the speedy trial provision of the sixth amendment to t......
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