Thomas v. State

• Decision Date: 22 July 1968
• Docket Number: No. 83115,83115
• Citation: 16 Ohio Misc. 199,241 N.E.2d 760
• Parties: , 45 O.O.2d 149, 45 O.O.2d 171 THOMAS, Petitioner, v. STATE, Respondent.
• Court: Ohio Court of Common Pleas

Page 199

16 Ohio Misc. 199

241 N.E.2d 760, 45 O.O.2d 149, 45 O.O.2d 171

THOMAS, Petitioner, v. STATE, Respondent.

No. 83115.

Court of Common Pleas of Ohio, Cuyahoga County.

July 22, 1968.

JACKSON, Judge.

This cause came on for hearing on April 17, 1968, on the petition of James Wallace Thomas, a prisoner now confined in the Ohio Penitentiary, Columbus Ohio, seeking vacation of his sentence, and upon the answer of the state of Ohio through the offices of John T. Corrigan, Prosecuting Attorney of Cuyahoga County, Ohio.

Petitioner alleges that his privilege against self-incrimination under the Fifth and Fourteenth Amendments to the United States Constitution and his right to counsel under the Sixth and Fourteenth Amendments to the United States Constitution as well as his rights under Article I, Section 10 of the Ohio Constitution were violated by the distribution to the jurors of a handbook containing the instructions that the court and jury could consider the failure of defendant to testify, and said failure could be made the subject of comment by counsel. The basic legal allegations in the petition are that (1) under the rule announced by the Supreme Court in Griffin v. State of California (April 28, 1965), 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, petitioner's privilege against self-incrimination was violated by the instruction, and (2) petitioner's right to counsel at a critical stage, as established in a series of cases from Gideon v. Wainwright (1963), 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, to the present, was violated since petitioner's counsel had no knowledge of such instructions and, therefore, no opportunity to object or to challenge such statement. Basically, as to this latter claim, petitioner contends that because he had no knowledge and because he had no counsel present at the time when this handbook was distributed, that his subsequently appointed counsel was unable to question the jurors to determine whether or not they would be influenced by such statement, and that counsel was unable to perhaps challenge the entire array if desired.

Respondent filed a general denial to these allegations.

Petitioner's motions to proceed in forma pauperis and for appointment of counsel which accompanied his petition to vacate were granted on April 9, 1968. On the same date, petitioner was ordered remanded to the jurisdiction of this court for a hearing pursuant to Section 2953.21, Revised Code.

The court, upon searching the files and records of the case, and upon listening to the evidence adduced at the oral hearing and having fully considered the same, finds:

That on October 5, 1965, petitioner was indicted by the grand jury for two counts of possession of a narcotic drug pursuant to Section 3719.09, Revised Code, two counts of possession of a narcotic drug for sale pursuant to Section 3719.20(A), Revised Code, and two counts of sale of a narcotic drug pursuant to Section 3719.20(B), Revised Code.

That on October 11, 1965, petitioner was brought before the Honorable Charles W. White for arraignment and, after petitioner was found indigent, said arraignment was continued to October 15, 1965, and a $5,000.00 bond was set.

That on October 15, 1965, petitioner was arraigned before the Honorable Charles W. White and was informed of his constitutional rights, including his right to counsel and of his right to have court appointed counsel. Petitioner pled not guilty.

That on December 1, 1965, previously appointed counsel having withdrawn, Elmer Giuliani, Esq., was appointed counsel for the defense.

That on December 21, 1965, upon a motion filed December 16, 1965, defendant was furnished with a bill of particulars.

That on June 10, 1966, upon a motion by the state, the case was continued to June 13, 1966, without objection by defendant.

That on June 13, 1966, a jury trial commenced before the Honorable Perry B. Jackson and on June 15, 1966, the jury returned a verdict of guilty on both counts of possession and both counts of possession for sale and a verdict of not guilty on both counts of sale of a narcotic drug. Defendant did not take the stand to testify in his own behalf at the trial. Defendant was sentenced to the Ohio Penitentiary for 2-15 years, concurrently, on the counts of possession and for 10-20 years, concurrently, on the counts of possession for sale, all counts to run concurrently.

That on July 13, 1966, defendant's motion for a new trial, which had been filed June 17, 1966, was overruled.

That on July 20, 1966, a notice of appeal and motions for production of transcript and appointment of counsel were filed. The latter two motions were granted on July 28, 1966.

That on June 2, 1967, the Court of Appeals, in case Number 28110, set aside as contrary to law, petitioner's conviction on the two counts charging possession of a narcotic drug relying on State v. Johnson (1960), 112 Ohio App. 124, 165 N.E.2d 814. The convictions on the two counts charging possession of a narcotic drug for sale were affirmed.

That on September 27, 1967, petitioner's motion for leave to appeal was overruled by the Ohio Supreme Court.

At the hearing of the petition to vacate on April 17, 1968, petitioner reaverred the allegations set forth above and in addition, claimed that under the 'harmless error' doctrine as established in Chapman v. State of California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, the claimed constitutional errors were not harmless beyond a reasonable doubt. Petitioner further alleged that the right to counsel is a constitutional error of such magnitude that it can never be considered to be harmless. It is petitioner's contention that the distributing of the handbook which contained the erroneous instruction, was accomplished in a manner imputing that it was an official court publication and required reading.

The prosecutor, in closing argument, set forth the proposition 'that there was no error whatsoever, not only harmless error, there was no error at all.' The prosecutor relied upon the voir dire of the jurors and their indication that they would disregard previous notions of what the law might be and would apply the law as given to them by the court.

By way of rebuttal argument, counsel for petitioner submitted 'that the voir dire of the jurors is not meant to cure error' especially since no comment by the court was specifically directed to the handbook.

The court is fully cognizant of the complicated legal questions involved in this proceeding and notes that some issues and evidence were not discussed by counsel for either side. The issues go far beyond a simple application of Chapman, supra, Griffin, supra, and the right to counsel cases, and the court would be remiss in its duty by failing to fully discuss this case with all attendant implications.

The court first finds that the jury handbook was distributed as a quasi-official publication of the court, and that the instruction contained therein to the effect that the jury could consider the failure of defendant to testify and said failure could be made the subject of comment by counsel constituted constitutional error in violation of Griffin v. State of California, supra.

The next question, which the court raises sua sponte, is whether this alleged error can now be raised in post-conviction proceedings, or whether such issue is res judicata as such doctrine is set forth in State v. Perry (1967), 10 Ohio St.2d 2d 175, 226 N.E.2d 104. Under this doctrine, any defense or claimed lack of due process that was or could have been raised at the trial or on appeal is res judicata and cannot be raised in post-conviction proceedings. However, in this instant proceeding, while the jury handbook did exist at the time of trial, petitioner and counsel had no knowledge of its contents, and the discovery of the error was more accident than design. Since the error was unknown to counsel (or the court) it could not conceivably have been raised as error and therefore the court concludes that res judicata does not apply to this issue. (See State v. Lynn (1966), 5 Ohio St.2d 106, 214 N.E.2d 226.)

The main question, therefore, is whether the error appearing in the handbook is 'harmless error' falling within that rule as set forth in Chapman v. State of California, supra. It should be noted that the Supreme Court found in the Chapman case that the comment and the charge constituted a continual and repeated impression on the jury. The comments went into almost every element of the case and in effect made the defendants, by their silence, 'irrefutable witnesses against themselves.' The court also held:

'There may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not (resulting in) the automatic reversal of the conviction.'

The court then said, citing Fahy v. State of Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171, 173:

'The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.'

And as to the standard of proof:

'* * * before a federal constitutional error can be held harmless, the court must be able to declare * * * that it was harmless beyond a reasonable doubt.'

With these rules in mind, the court proceeds to determine whether the handbook error was 'harmless' or prejudicial, requiring vacation of the judgment.

At the hearing, in addition to petitioner, three jurors who served at petitioner's trial testified as to the handbook.

Mr. McVicker, on direct examination, testified that he read the handbook the same day as the trial. On cross-examination he testified that he did not resort to the handbook in an effort to apply the law during deliberations; that he made a conscientious effort to accept the law as given by the court and to disregard his prior notions of what the law was or what he thought it to...