State v. Sims

• Decision Date: 25 April 1977
• Citation: 52 Ohio Misc. 31,369 N.E.2d 24
• Parties: , 6 O.O.3d 124 The STATE of Ohio v. SIMS.
• Court: Ohio Court of Common Pleas

Page 31

52 Ohio Misc. 31

369 N.E.2d 24, 6 O.O.3d 124

The STATE of Ohio v. SIMS.

Court of Common Pleas of Ohio, Cuyahoga County.

April 25, 1977.

Syllabus by the Court

1. An accused, indicted for the aggravated robbery of X, is denied the "compulsory process to procure the attendance of witness in his behalf" and/or "in his favor," as provided by Section 10, Article I of the Ohio Constitution and the 6th Amendment to the United States Constitution, respectively, where the state fails to produce X as a witness after X, three months prior to trial, gives the agent of accused's counsel a written statement declaring that the accused was not a participant in a particular robbery committed by a number of persons of whom only the accused is indicted, and where X is subpoenaed by the accused when he first learns in the course of his trial that X will not be appearing to give testimony in support of the charge laid in the indictment but said subpoena cannot be served before the trial is concluded. Such denial of "compulsory process" authorizes the vacation of a conviction for aggravated robbery of three persons, all alleged to have been robbed in the same robbery where X and another were also alleged to have been robbed, and the ordering of a new trial, in a post-conviction relief proceeding pursuant to R.C. 2953.21.

2. An accused, convicted of aggravated robbery solely on the eye witness testimony of persons who declared they never before either saw him or any of several accomplices and all of whom were observed for only perhaps two minutes in a dimly lit night club, established in post-conviction proceeding: (1) that he was denied "compulsory process" for X a witness in his favor; and (2) that in 1973 prior to trial he had requested a polygraph examination with the claim that such examination would clearly corroborate his assertion that he 3. The polygraph "lie detector" technique, conducted by trained and experienced examiners of integrity, is highly reliable in disclosing deception or lack of it in persons subjected to such examination and such fact has been recognized by the many persons knowledgeable in the field for the past 25 years. The scientific basis for proper use of the polygraph in detecting deception or lack of it is so well established today as to meet the standards for its reliable use as stated in Frye v. United States, 54 App.D.C. 46, 293 F. 1013.

had no part in the robbery and had never been in the night club where the robbery occurred until months after the robbery, which request he repeated in the course of the post trial proceedings. Held : accused is entitled to a new trial with X present as a witness; also that he is entitled to request examination by a competent polygraph examiner and if the results are favorable to him, to have "compulsory process" for said examiner as a witness in "in his behalf" or "in his favor." If such results are not in "in his behalf" or "in his favor" the examiner may be subpoenaed as a witness by the state.

4. No objection to the "expert" testimony of a polygraph examiner testifying in favor of an accused at his request, will be sustained if said examiner has never been involved in activity reflecting adversely on his integrity or credibility and has these qualifications: (1) 10 years full-time employment as an examiner; or (2) is at least 25 years old, has completed two or more years of post high school college level education, has completed schooling in use of the polygraph at an institution recognized by The American Polygraph Association, is currently employed as a full time polygraph examiner and has been such for one or more years, and, has actually conducted 1,000 or more polygraph examinations.

5. Where an indigent accused, advised by counsel that he need not submit to any examination, nevertheless requests a polygraph examination understanding that if the results are in his favor he may subpoena the examiner John T. Corrigan, Pros. Atty., and James A. Carney, Cleveland, for plaintiff.

to so testify but that if they are not in his favor the examiner may be subpoenaed to testify for the state, the [369 N.E.2d 27] court may appoint a competent and qualified polygraph examiner employed by the state to conduct such examination.

Alan I. Goodman, Cleveland, for defendant.

HITCHCOCK, Judge. (By assignment from Paulding County.)

Ordinarily, it would seem that defendant's R.C. 2953.21 petition for post-conviction relief should be easily and summarily dismissed when these facts are not disputed. Defendant was tried by a jury which heard the evidence in a three-day trial. On the fourth day, June 8, 1973, when the final arguments of counsel were made and the jury instructed by the judge, the defendant, free on bail, did not appear. At 5:30 P.M. of this day, the jury returned its verdict in defendant's absence finding him guilty as charged in respect to offenses committed shortly before midnight at The Fountain Bleu Lounge in Cleveland at E. 67th St. and Carnegie on August 24, 1972, as to three of five numbered counts specified in the indictment, to-wit: (2) Guilty of the armed robbery of Otis M. Bivins; (4) Guilty of the armed robbery of Maurice Presley; and (5) Guilty of the armed robbery of John Bennett. Counts charging the same offense in respect to (1) Geraldine Freeman and (3) Charles Jefferson were dismissed for lack of probative evidence at the end of the state's case because these persons could not be found to testify at the trial. Defendant was in this trial represented by Roger J. Hurley of the staff of The Legal Aid Society who in the past five years has defended over 100 persons in jury trials on felony counts and although he has kept no strict account knows that in approximately 50 percent of them the jury returned a verdict of "not guilty."

On appeal to the Court of Appeals defendant's conviction on each count was affirmed and the Supreme Court of Ohio, sua sponte, dismissed his further appeal for want of a substantial constitutional question.

Further, it is known that prior to his conviction in this case on three counts of armed robbery, defendant has a Juvenile Court record and was acquitted by a jury of multiple counts of armed robbery in one trial; and again acquitted of carrying a concealed weapon in another jury trial; and that in all these jury trials he was represented by the same counsel, Mr. Roger J. Hurley, who was observed by the writer as the presiding judge of the jury trial wherein defendant was, by the jury, acquitted of armed robbery. Also, numerous members of the Cleveland bar have informed the court that Mr. Hurley has a reputation as being one of the city's most competent and capable lawyers in the defense of criminal cases; and the court knows from personal observation as presiding judge of two jury trials wherein Mr. Hurley was defense counsel that he is a trial lawyer of high competence in the defense of criminal charges.

Still, if this court is to adhere to its own conviction of what is required of those who voluntarily take Ohio's judicial oath, defendant poses questions of uncommon difficulty in light of these additional facts.

The journal entry made after a review of the pleadings and record found that: " * * * Defendant failed to attend the concluding day of his trial and * * * that there is no substance to Defendant's claims numbered 3, 4, 7 and 8 charging he did not have competent representation because his counsel, Roger Hurley, failed respectively to: object to the jurisdiction of the trial court, raise the due process issue in respect to his lineup identification, ask the Court for a voir dire in respect to his in-court identification, and request discovery from the prosecutor; and that his claims numbered 1, 2, 5, and 6 alleging that he did not have competent representation because his counsel, Roger Hurley, failed respectively to: properly investigate his case, subpoena a certain witness, object to the validity of the affidavit and warrant as constitutionally impermissible, and Alan I. Goodman was appointed counsel for defendant as per R.C. 2953.24 and defendant was returned to Cleveland, and on June 17 and 24, 1976, with defendant, defense counsel, and assistant prosecuting attorney James A. Carney present, evidence was adduced from which the court finds:

to consult fully with the petitioner, cannot be determined [369 N.E.2d 28] without considering additional evidence not in the record, and that defendant petitioner is indigent."

I. Identification Statement

That defense counsel, through an investigator for the Legal Aid Society, did on March 6, 1973, obtain from Geraldine Freeman, barmaid on duty at The Fountain Bleu Lounge on August 24, 1972, the day of the robbery, a statement which reads:

"I have veiwed (sic ) two photographs showed to me by Mrs. Alice Peck on March 6, 1973, and I have initialed the same. None of the persons in those photographs were present or had anything to do with the robbery at the Fountain Bleu on August 24th, 1972.

"I make this statement freely and voluntarily knowing that Mrs. Peck is a (sic ) investigator for the Defendant's Office and represent (sic ) Jackie Ray Sims.

"No threat, promises or other consideration were given to me for me to make this statement.

"If Jackie Ray Sims is pictured on those photographs he did not take part in that robbery.

"(s) Geraldine A. Freeman

"(s) Geraldine A. Freeman"

The statement is typed upon a sheet of bond paper bearing the letterhead of The Legal Aid Society of Cleveland and the maker's signature is a bold one, reminiscent of some famous in history. ¹

One of the photographs mentioned is undisputedly that of defendant Sims and two other men and appears as defendant's Exhibit B in the record.

II. Alibi

Defense counsel did not interview either defendant's mother, Alice Richardson or his former wife, Billie Sims, who, defendant told his counsel, knew where he was for the five hours after 8:00 P.M. August 24, 1972, and it was...