The court here allows it made errors of judgment in admitting certain evidence relating to previous convictions but other errors were unproven, for example, that counsel provided "ineffective assistance" to the defendants.
Generally, the evidence was overwhelming relating to their guilt. One defendant said that he had been "tainted" by association with others in the same courtroom. The judge threw this one out. He could hardly object, as he was a known criminal himself!
Bill Scott will soon be making reappearance. He's the mystery man, previously associated with the heroin crooks in these court papers, who helped to fund Cryptologic when they started with the dirtiest form of finance -- drug money.
Crooks always try hard to hang on to what they've got. Just recently, Cryptologic completed the buy back of a million of its shares, a well-known device used to prop up the stock price of a company that could be in trouble.
If the company collapsed, more details of the company's murky, shady background would emerge so it's likely the buy-back scheme was a protective measure.
If they used dirty money in the past, what's to stop them doing so again? And Bill Scott is running Intercasino for them. We would be very surprised if these crooks were not laundering money, it would be consistent with their persistent refusal to supply figures to the licensees.
Does that mean this public company doesn't forget old friends, even those who are convicted heroin traffickers?
Read the court extracts here.
Below are extracts from the court records, 100% original, not edited.
ASSIGNMENT OF ERROR FIVE
"The trial court prejudicially erred in admitting evidence: (A) state's exhibits 196, 197, 198 and 199, evidence of drugs and drug paraphernalia relating to prior convictions (Tr., XI, 2666); (B) state's exhibits 214, 125, and 216, photographs relating to prior convictions (Tr., XVI, 3330-31)."
State exhibits 196, 197, 198 and 199 are photographs of Powell's residence at 464-1/2 Douglas Street. They depict barred steel doors on the front and back or side entrance and on a stairway in the house. The photographs were taken in [*56] conjunction with the execution of the search warrant on May 9, 1974. These exhibits were properly admitted under count one.
State exhibits 214, 215 and 216 are photographs seized from 464-1/2 Douglas Street on May 9, 1974. They were offered and admitted after the defendants had rested their cases. They were identified by Powell during cross-examinations as (1) a photograph of Powell pointing to a diamond ring on his hand (exhibit 216); (2) photographs of Curtis Callaway, who also lived at 464-1/2 Douglas Street, holding United States currency at a table bearing inter alia, a package of aluminum foil (exhibits 215 and 214). These photographs were offered to rebut Powell's assertion that he was a mere addict who did not sell heroin, but only provided space and paraphernalia for other addicts. There is no error in their admission.
SECTION C - CASE 8883
(JAMES WILLIAMS)
ASSIGNMENT OF ERROR FOUR
"The defendant is denied the effective assistance of counsel and due process of law when his trial lawyers fail to investigate his claimed defenses, raise such defense at trial and preserve same for appellate review."
James Williams claims he was not afforded the effective [*57]assistance of counsel in violation of the Sixth and Fourteenth Amendments of the United States Constitution.
Williams' initial two counsel were permitted to withdraw and trial counsel were appointed on March 17, 1978. Trial commenced April 3. Trial counsel had the benefit of consultation with at least one of Williams' former counsel and of several pre-trial motions already filed on Williams' behalf. It is Williams' apparent contention that trial counsel either was not, or could not have been, prepared to try this complex case. This assertion is conjectural. State v. Goins, 47 Ohio App. 2d 283 (1975) does not control here. In Goins, supra, counsel had two days notice of the trial and was appointed the day before trial. This abrupt appointment prevented adequate preparation and investigation. It was the action of the trial court, which caused Goins to suffer ineffective representation. Goins, supra at 285.See, State v. Orr, Summit No. 9081 (9th Dist. Ct. App., May 31, 1979). No comparable situation is presented here.
Many of the state witnesses had histories of heroin addiction had acted as police informants, and had pending criminal charges.
Williams says special jury instructions [*58] concerning the inherent unreliability of these witnesses should have been requested. See, e.g. On Lee v. United States, 343 U.S. 747, 757 (1952); United States v. Kinnard, 465 F. 2d 566 (D.C., Cir. 1972); United States v. Griffin, 382 F. 2d 823 (6th Cir. 1967). While we recognize the considerations prompting the development of the rules these cases apply, we perceive the law in Ohio is otherwise. See, State v. Flonnory, 31 Ohio St. 2d 124 (1972), fourth paragraph of the syllabus; State v. Tuttle, 67 Ohio St. 440 (1903), fourth paragraph of the syllabus; State v. Clayberger, Summit No. 7549 (9th Dist. Ct. App., April 30, 1975).
As part of the instruction relating to count five, the trial court gave the state the benefit of the presumption of intentional possession of a narcotic drug contained in former R.C. 3719.09(C). See, State v. Dempsey, 22 Ohio St. 2d 219, 222 (1970). Williams says the presumption violates Ullaney v. Wilbur, 421 U.S. 684 (1975) and State v. Robinson, 47 Ohio St. 2d 103 (1976) and that trial counsel's failure to object constitutes ineffective assistance of counsel. We disagree with the argument that the presumption operates to lessen the state's constitutionally [*59] required burden of proof. It is a permissive presumption; the jury is left free to accept or reject the inference. The presumption, as the trial court charged,
"*** does not relieve the state of Ohio of the duty of establishing the intent to possess a narcotic drug beyond a reasonable doubt.
Williams' assignment of error five claims reversible error due to prosecutorial misconduct during closing argument. Here, he says trial counsel's failure to object to certain of the prosecutor's remarks is ineffective assistance. We do not find any impropriety in those remarks.
Williams' cross-examination was based in part upon a transcript of his testimony before a federal grand jury in Washington, D.C., following the arrest of Carol Brantley and William Scott on August 10, 1973. Trial counsel argued against the use of the transcript, again objected when the cross-examination commenced, and frequently objected thereafter. Trial counsel stipulated to the authenticity of the transcript. The stipulation, we have no doubt, was given because trial counsel was aware of the accuracy of the document. It is not ineffective assistance to fail to needlessly hinder the course [*60] of the trial.
On January 19, 1978, the residence of Daisy Andrews at 986 Peckham Street was searched pursuant to warrant. Williams, who resided at 277 West Long Street with his wife, Sharon, occasionally stayed with Andrews on Peckham Street. Many of the items seized at 986 Peckham Street, including 85% pure heroin, were introduced as exhibits at the trial.
The warrant to search 986 Peckham Street was based upon the same affidavit used to secure the warrants to search 811 Easter Avenue, Daniel and David Burch's apartment on Fir Hill, and the Rare Elements store in the Rolling Acres Mall. No motion to suppress the evidence seized from 986 Peckham Street was filed. Such inaction can constitute ineffective assistance of counsel. State v. Woolum, 47 Ohio App. 2d 313 (1976). We find, however, that Williams was not prejudiced. The affidavit upon which the search warrants were based was attacked by Daniel and David Burch and by Rare Elements, Inc. We have discussed and upheld the validity of the affidavit. Many of the allegations in the affidavit link Daniel Burch and Williams together in heroin dealings. The majority of the allegations concerning activity at 986 Peckham Street [*61] involve Daniel Burch or Williams and Daniel Burch.
ASSIGNMENT OF ERROR FIVE
"The appellant was deprived of a fair trial as a consequence of the prosecutor's resort to highly prejudicial and inflammatory comments made during his summations."
Jams Williams here, and Daniel Burch in his eighth assignment of error, say that the prosecutor appealed to the jurors' emotions, fears and prejudices. Our examination of the remarks does not lead us to believe that they called for conviction to meet public demand, rather than by proof of guilt beyond a reasonable doubt. State v. Agner, 30 Ohio App. 2d 96, 104 (1972); State v. Cloud, 112 Ohio App. 208, 214 (1960).
Williams also says that the prosecutor referred to matters outside the record, grossly misstated the law and injected his own opinion on the credibility of witnesses.
The last assertion refers to the prosecutor's explicit statements that "deals" were made with witnesses Alma Jones, Willie Walker and Alfred Oaks (see the next assignment of error) and that the witnesses were telling the truth. These remarks were based upon the testimony adduced at trial and upon the prosecutor's opinion that the witnesses had a motive to [*62] tell the truth, regardless of their unsavory backgrounds. The prosecutor's statement that witness Frederick Douglas was as "honest a fellow" as he had seen in a court of law was a needless comment; but is hardly misconduct or prejudicial to Williams.
We find that all other remarks which Williams complains of are based upon the evidence. See, State v. Marshall, 15 Ohio App. 2d 187 (1968), first paragraph of the syllabus; State v. Young, 7 Ohio App. 2d 194, 197 (1966).
ASSIGNMENT OF ERROR SIX
"The trial court's conduct, in this case, facilitated a serious violation of due process by allowing the prosecutor to call to the jury's attention, and capitalize on the fact, that various significant state's witnesses were then awaiting sentence by him, the very judge who was monitoring their testimony in the jury's presence."
It was brought out during the trial, either during direct examination or during cross-examination or during both direct and cross-examination, that certain state witnesses were awaiting sentence from Judge Reece, who presided over the trial. The offenses included ones charged in the indictment and ones unrelated to the indictment. At least one witness was [*63] on probation from Judge Reece. Several defendants, including Williams, either elicited this information on cross-examination, or had the witnesses reiterate the information brought out during direct examination. The situation of these witnesses was also extensively remarked on by the state and several defense counsel during final argument.
Williams argues that Judge Reece's inaction during the prosecution's role in this process served to bolster the credibility of the witnesses and denied him a fair trial. This assertion is merit less. The fact is, both prosecution and defense sought and played on the testimony to either bolster or erode the witnesses' credibility. Judge Reece remained neutral; there was no comment, as in State v. Thomas, 33 Ohio App. 2d 7 (1973), affirmed 36 Ohio St. 2d 68 (1973), implying that "*** the witness' motive for testifying was not tied to a self-serving 'deal.'" State v. Thomas, 36 Ohio St. 2d, supra, at 71. The jury's role as sole arbiter of this question was not impaired.
