State v. Parrott

• Decision Date: 14 July 1971
• Docket Number: No. 70-544,70-544
• Citation: 56 O.O.2d 124,272 N.E.2d 112,27 Ohio St.2d 205
• Parties: , 56 O.O.2d 124 The STATE of Ohio, Appellee, v. PARROTT, Appellant.
• Court: Ohio Supreme Court

Page 205

27 Ohio St.2d 205

272 N.E.2d 112, 56 O.O.2d 124

The STATE of Ohio, Appellee, v. PARROTT, Appellant.

No. 70-544.

Supreme Court of Ohio.

July 14, 1971.

Syllabus by the Court

The rule announced in Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 that a preliminary examination is a critical stage of the criminal process during which a defendant's right to counsel is protected by the Sixth and Fourteenth Amendments to the United States Constitution, and that a denial of counsel at that stage invalidates a subsequent conviction unless the denial of counsel can be shown to be harmless error, is not retroactively applicable.

Dennis William Parrott was indicted for a violation of R.C. § 2905.01. The indictment alleges that he had carnal knowledge of a female person 15 years of age, forcibly and against her will. Prior to trial, on October 30, 1969, appellant moved to suppress all the state's evidence for the reason that he had been without counsel at the preliminary examination. After a hearing on December 3, 1969, the motion was denied. On December 10 and 11, 1969, appellant was tried before a jury. He was convicted of the lesser included offense of assault with intent to rape, contrary to R.C. § 2901.24.

The state's evidence showed that the victim and her girl friend had run away from their homes in Pennsylvania, and had been picked up by appellant, a 28-year-old truck driver en route from New York to St. Louis, via Cincinnati, where he resided. According to the state's evidence, the assault took place near Oxford, Ohio, in Butler County.

On May 20, 1969, Parrott, while in Hamilton County, where he had been detained on other charges, was arrested and taken to Butler County. Appellant had retained counsel, Louis J. Hendricks, Jr., regarding the Hamilton County charge, who testified at the hearing on appellant's motion to suppress, that he was present when appellant was arrested and taken to Butler County. He stated that since he understood that Parrott was to make bond on the Butler County charge, he did not accompany him. Upon calling the sheriff's office in Bulter County, however, he was informed that appellant was at that time in court for preliminary examination. Mr. Hendricks also testified that he spoke with Detective Castator by telephone, who did not permit him to speak with appellant, remarking that the preliminary examination was then in progress.

Appellant Parrott testified that he had been informed of his right to counsel by the judge at the preliminary examination, but had not made a definitive request for such assistance at that time. However, he had previously requested permission from Detective Castator to make a telephone call to his lawyer, but testified that the request was denied. A plea of not guilty was entered on his behalf by the judge at that hearing.

Detective Castator testified that appellant did not request permission to call his attorney, and that in their telephone conversation Mr. Hendricks did not ask to speak to his client. The same night of the preliminary examination appellant was bound over to the grand jury.

At the hearing on appellant's motion to suppress, his counsel requested that he be permitted to call Detective Castator and cross-examine him as a hostile witness. The court denied the request.

At trial, the state attempted to introduce in evidence a hospital medical record of emergency room treatment given the 15-year-old girl, the alleged victim of the rape. Defense counsel's objection to the admission of the record was sustained. In appellant's case, he attempted to offer the same record in evidence, but the prosecutor's objection to its admission was also sustained.

The trial court, in addition to charging the jury concerning the elements of the crime of rape, charged on the elements of 'rape with consent of a female under the age of sixteen or carnal knowledge of a female under sixteen with consent.' The jury was also instructed as to the lesser included offenses, assault with intent to rape and assault and battery.

Appellant's conviction was affirmed by the Court of Appeals, and this cause is now before this court pursuant to the allowance of a motion for leave of appeal.

Richard J. Wessel, Pros. Atty., for appellee.

Morris G. Sullivan, Cincinnati, for appellant.

DUNCAN, Justice.

In Coleman v. Alabama (1970), 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 decided on June 22, 1970, the United States Supreme Court, in dealing with an Alabama criminal prosecution, decided that a preliminary examination was a critical stage of the criminal process during which a defendant's right to counsel is protected by the Sixth and Fourteenth Amendments to the United States Constitution. It was there held that a denial of counsel at that stage invalidates a subsequent conviction unless it can be shown that the denial was harmless error. Under the rule of Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 the denial of the constitutional right can be harmless error only if illustrated harmless beyond a reasonable doubt.

Even though there are certain differences between the Alabama preliminary examination procedure and that in Ohio, there remains no question that after the decision in Coleman v. Alabama, supra, Ohio courts are required to observe the Sixth and Fourteenth amendment rights of an accused at a preliminary examination, notwithstanding prior decisions of this court have held otherwise. See State ex rel. Haynes v. Powers (1969), 20 Ohio St.2d 46, 254 N.E.2d 19; Freeman v. Maxwell (1964), 177 Ohio St. 93, 202 N.E.2d 623.

We must first decide whether the Coleman rule is retroactive so as to establish requirements for the preliminary examination in the case at bar. Other jurisdictions apparently have reached different conclusions regarding whether the rule in Coleman is applicable retrospectively. ¹

Appellant invites our attention to the fact that the case of White v. Maryland (1963), 373 U.S. 59, 83 S.Ct. 1050 10 L.Ed.2d 193, was held to be retroactive. The case at bar, as well as Coleman, is distinguishable from White v. Maryland, supra. Although 'critical stage' language was used in White and in Coleman in describing a preliminary examination, in White, a guilty plea entered by the defendant not represented by counsel at a preliminary hearing was permitted to be used against him at trial. The denial of counsel in White under those circumstances was held to be violative of the constitutional right to counsel, and its thrust so serious that a fair trial was denied. The court, in Arsenault v. Massachusetts (1968), 393 U.S. 5, 6, 89 S.Ct. 35, 36, 21 L.Ed.2d 5, stated:

'The right to counsel at the trial (Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799); on appeal (Douglas v. People of State of California 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811); and at the other 'critical' stages of the criminal proceedings (Hamilton v. Alabama, supra, (368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114)) have all been made retroactive, since the 'denial of the right must almost invarably deny a fair trial.' See Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 18 L.Ed.2d 1199. (Emphasis added.)'

See, also, Kitchens v. Smith (1971), 401 U.S. 847, 91 S.Ct. 1089, 28 L.Ed.2d 519.

Where evidence is taken or a plea of guilty is entered by a defendant who was deprived of the constitutional right to legal assistance at a preliminary examination, and such evidence or plea is allowed to be used against the defendant at his trial, the harm is so far-reaching that it approaches a kind of denial of counsel held to be a violation of the United States Constitution and retroactive in Gideon v. Wainwright, supra (372 U.S. 335, 85 S.Ct. 792).

In Coleman v. Alabama, supra (399 U.S. 1, 90 S.Ct. 1999, the rationale of the court clearly describes the handicap to a defendant at trial stemming from the failure to have counsel at a preliminary examination, including the process of accumulating information for the future trial. The court did not, however, hold that deficiency to be a denial of counsel in the Gideon sense.

The differing concerns are evidenced by the fact that in Coleman, the constitutional infirmity could be shown to be harmless error. On the other hand, when counsel is denied at a preliminary examination, where evidence taken or a plea entered at the hearing is introduced against a defendant at trial, the error cannot be shown to be harmless error. See White v. Maryland, supra.

A declaration that a particular stage is a 'critical stage' in a criminal proceeding carries no mandate that the declaration be applied retroactively. United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California (1967), 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; and Escobedo v. Illinois (1964), 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, involved 'critical stages' in criminal proceedings. Nevertheless, the rule of those cases has been decided to be applicable prospectively only. See Johnson v. New Jersey (1966), 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882; Stovall v. Denno (1967), 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199.

In view of the basis of the decision in Coleman v. Alabama, supra (399 U.S. 1, 90 S.Ct. 1999), the reliance placed on the former determinations of the noncritical nature of a preliminary examination under R.C. 2937.01 et seq., and the fact that, in this case, appellant has not indicated that any evidence taken at a preliminary examination was erroneously permitted to affect his trial, we decide that the trial court did not err in ruling on the motion to suppress. Stovall...