On December 14, 1983, a gunman robbed an Arby’s restaurant in Toledo, Ohio, and shot and wounded a Toledo police officer.
Although the robber wore a mask, three employees identified 27-year-old Morgan Miller as the gunman. Miller and two friends had been in the restaurant a short time before the robbery and one of his friends argued with a worker about an order.
After Miller was arrested, Joseph Clark, who was in custody on unrelated murder and robbery charges, confessed to committing the Arby’s holdup and shooting. He later recanted the confession during questioning by police.
Clark and Miller were black males with similar, although not identical facial features. Both were about 5’4” tall and weighed about 140 pounds.
Prior to Miller’s trial, a hearing was held to determine whether Clark, whom the defense intended to call as a witness, would refuse to testify and invoke his Fifth Amendment right against self-incrimination. The court refused to allow the defense to call him to testify because it was clear that Clark would indeed assert his Fifth Amendment right to refuse to answer any questions.
At trial, the Arby’s manager said the robber was the same man who robbed the store on November 19, 1983. Miller was charged, but acquitted of the November holdup.
The defense was denied a continuance to call an alibi witness who was in the U.S. Navy and could not get to court.
On June 18, 1984, Miller was convicted in Lucas County Court on one count of felonious assault with a firearm and one count of aggravated robbery with a firearm. He received consecutive sentences of 11 to 15 years for the felonious assault and nine to 25 years for the aggravated robbery.
After the trial, the crime was featured on a television broadcast of Unsolved Mysteries and a photograph of Clark was aired. A prosecution witness who was never asked to identify Miller saw the program and recognized Clark as the man he saw running from the Arby’s.
Miller lost his appeal as well as a motion for new trial. On February 13, 1990, Miller filed a petition for post-conviction relief, citing the new evidence of the identification of Clark. That was denied as well.
He appealed the denial, raising a claim of ineffective assistance of appellate counsel for failing to raise on appeal the issue that the trial court had erred by refusing to allow the defense to call Clark as a witness.
On December 2, 1992, the Court of Appeals of Ohio, Sixth District, set aside Miller’s conviction due to ineffective assistance of appellate counsel. The court held that the trial judge committed error in barring Clark’s testimony, even if he would have asserted his Fifth Amendment right not to answer questions.
The court held that while it was improper to engage in extensive questioning of a witness who asserts the Fifth Amendment, it was also improper to prohibit such a witness from being called to the stand at all.
The court set aside Miller’s convictions and ordered a new trial. A week later, prosecutors dismissed the charges and Miller was released.
– Maurice Possley