State v. Johnson, 40770
| Citation | 236 N.E.2d 552,14 Ohio St.2d 67 |
| Decision Date | 17 April 1968 |
| Docket Number | No. 40770,40770 |
| Parties | , 43 O.O.2d 126 The STATE of Ohio, Appellee, v. JOHNSON, Appellant. |
| Court | Ohio Supreme Court |
On October 10, 1962, Charles Victor Johnson, appellant herein, was arrested by the Ravenna Police Department in connection with two rapes tht had occurred in the area on August 7 and August 20, of that year. The preliminary hearing was had before the Ravenna Municipal Court on October 17, and as a result of the hearing the appellant was held for the grand jury and bond was set at $30,000. Since the appellant could not post bond, he remained in jail. At this time he had no counsel, and there is no indication that he was advised of his right to counsel.
The appellant was charged with two counts of rape and advised of his right to counsel at the arraignment, which was held on January 17, 1963. He requested and obtained court-appointed counsel, and four days later entered a plea of not guilty.
The trial was held on January 28, 1963, and the appellant was convicted on both counts and sentenced to from six to forty years in the Ohio Penitentiary. These convictions were affirmed on appeal, and a subsequent motion for leave to appeal to this court was overruled.
In November 1965, the appellant filed a petition for postconviction relief in the Court of Common Pleas of Portage County in which he claimed that his incarceration for three months without counsel had so impaired his opportunity to participate in the fact-finding process of trial as to deny him a fair trial. The Common Pleas Court found that appellant was not entitled to relief and dismissed the petition. The Court of Appeals affirmed the order dismissing the petition, and the appellant then sought and obtained leave to appeal to this court.
George E. Martin, Pros. Atty., for appellee.
Gerald A. Messerman, Columbus, for appellant.
The appellant claims that he was denied a fair trial because he was incarcerated and without counsel for approximately three months after his arrest and therefore had no means of contacting his alibi witnesses before their memories of the events constituting his alibi had dimmed.
It would be superfluous to discuss the merits of this claim, as we did a comparable claim on the direct appeal from the judgment of conviction in State v. Childs, 14 Ohio St.2d 56, 236 N.E.2d 545. This claim could have been raised before trial, at trial, or on appeal, and since it was not it is now barred by the doctrine of res judicata. State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
I regret that I am unable to concur in the opinion of my colleagues in the case at bar. An indigent prisoner, whose education was limited to the second grade in elementary school, who had an excellent reputation, was a steady worker and church member, stands convicted of the crime of rape on two counts and faces a consecutive term sentence of up to 40 years in the penitentiary. Two women were raped. Rape is among the most horrible and revolting crimes known to our society. The crime of rape is difficult to prove, but it is far more difficult for an indigent prisoner to establish his innocence.
I will endeavor to consider the questions raised by the petition and the record, and discuss them as they appear.
Claimed errors numbers one and two may be consolidated.
1. Denial of due process under the laws of Ohio.
2. Denial of rights of the petitioner guaranteed him by the Constitution of the United States and the Constitution of Ohio.
On October 10, 1962, the petitioner was arrested, without a warrant, and lodged in the jail, accused of the crime of rape. He was accused of committing rape on August 7 and August 20, 1962. Immediately after his arrest he was interrogated by police officers for six hours without the assistance of counsel or any explanation of his rights. At intervals after his arrest the two victims of the attack were brought to the police station and placed in one room where a mirror arrangement provided a view of the interior of an adjoining room. The petitioner was placed in this room alone and the victims viewed him through the mirror. Each of them identified him as the assailant. This, likewise, took place without the assistance of counsel.
The state protests that the answers elicited from the petitioner during the six-hour interrogation in the absence of counsel were not introduced or admitted in evidence hence, therefore, any error was cured. However, the record discloses that the state used the answers given by the petitioner as the basis of a long and severe cross-examination at the trial upon the indictment. Many such questions were similar to 'Didn't you say to the officers this or didn't you say to the officers, that when they were questioning you?' This may have resulted, or did result, in serious prejudice to the rights of the petitioner, as such a procedure would tend to cause the jury to speculate or draw inferences not warranted by the context of petitioner's statements. See Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; Gideon v. Wainwright, 372 U.S. 335, 342, 83 S.Ct. 792, 9 L.Ed.2d 799; United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Sixth Amendment to the Constitution of the United States and Section 10 of the Bill of Rights of the Constitution of Ohio.
The General Assembly has enacted laudible legislation to protect the rights of an accused person, particularly those unable to procure bail from the date of arrest to the date of trial. We will refer to some of the applicable sections of the Revised Code.
Section 2937.02 of the Revised Code of Ohio provides:
'When, after arrest, the accused is taken before a court or magistrate, or when the accused appears pursuant to terms of summons or notice, the affidavit or complaint being first filed, the court or magistrate shall, before proceeding further:
'(A) Inform the accused of the nature of the charge against him and the identity of the complainant and permit the accused or his counsel to see and read the affidavit or complaint or a copy thereof;
'(B) Inform the accused of his right to have counsel and the right to a continuance in the proceedings to secure counsel;
'(C) Inform the accused of the effect of pleas of guilty, not guilty, and no contest, of his right to trial by jury, and the necessity of making written demand therefor;
'(D) If the charge be a felony, inform the accused of the nature and extent of possible punishment on conviction and of the right to preliminary hearing. * * *'
The petitioner was denied these rights, and was deprived of such information so valuable to an accused, particularly one without a police record.
Section 2937.03 of the Revised Code provides:
(Emphasis added.)
3. The evidence is not sufficient, as a matter of law, to sustain the judgment of conviction.
The police relied heavily upon the claim that the assailant drove a black automobile and that petitioner was the owner of a black automobile and, therefore, that he was guilty of the two rapes. The evidence for the state discloses that, on the date of one of the attacks, a Negro drove a black Chrysler automobile, according to one witness, and a black Chevrolet, according to another, in the vicinity of the home of one of the victims. Witnesses for the state described the assailant's car as bright, 'shiny,' with chrome molding encircling the car, not very old and well-kept. The state's witnesses described the petitioner's car as a 1955 or 1956 black Chevrolet, recently in a collision and not very well kept. It seems strange that the state, which had petitioner's car in its possession, did not offer to permit the jury to view it in order to permit the jury to compare its appearance to that of the assailant's car as described in the evidence.
A composite picture, an imaginary creation of the general appearance of the criminal, was shown to the victims to aid them in identifying the petitioner. The testimony of the official of the Ohio Bureau of Criminal Identification and Investigation, in charge of the use of composite drawings, described how it was constructed. He had a composite drawing on the witness stand while testifying. This exhibit was not admitted in evidence but the testimony describing it was allowed to stand. Local police witnesses testified that the composite drawing varied from the appearance of the petitioner. The two victims gave the only testimony identifying the petitioner. The testimony of these two differed vitally in respect to the features of the assailant and the petitioner. Miss Biltz did not remember if her assailant had a mustache. Mrs. Pease, the other victim, was positive, in her testimony, that her assailant did not have a mustache;...
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