State v. Doak

360 N.E.2d 48, 49 Ohio App. 2d 161, 3 Ohio Op. 3d 216, 1975 Ohio App. LEXIS 5907

• Court: Ohio Court of Appeals
• Decided: December 10, 1975
• Docket: 7829
• Status: Published

Opinion

Mahoney, J.

This is an appeal from convictions .for burglary and grand theft in the Summit County Cqurt o£ Common Pleas'. ,

The defendant, James Doak, was arrested by officers of the Springfield Township Police Department and taken to the Akron Police Department in the early morning hours of Mareh 9,1975. He was charged with breaking and entering and grand theft, all in connection with a burglary of Foutty’s Star Market on Massillon Road. ‘‘ ■

He was táken to the detective bureau of the Akron Police Department where Officer Householder of the:Springfield ' Township Police Department read his “Miranda rights”, to him. At that time, Doak indicated that he understood his rights and wanted to consult his lawyer. ■_

At about .9:30 A. M., the defendant was faken to interrogation room 6 in the detective bureau. Detective'Moore of the Akron Police Department read the “Miraiídá cárd” to the defendant and . defendant again indicated that he understood his rights and desired to see. his attorney. Then, Moore took him to another room and. confronted him with a'potential state’s witness, Abe Tarver. Moore asked Tarver to tell his story, again and Tarver related that Doak and Richard. Johnson had used his (Tarver’s) car the night of the burglary, that he saw them- counting money, .and that they told him that, they had knocked off Foutty’s store and gave him $50 for'the use of his car.

., . After Tárvér finished his statement, Mooré took Doak back toward room 6 and on the way asked him:" “Well, what about the burglary now,” or words, to that effect. Doak replied, “Well okay.” Moore testified that he then reminded Doak that he had an attorney and did not have to say anything without Consulting his attorney. Moore further testified, that the defendant indicated he would make a statement without his attorney’s advice and' without his attorney. being present. The defendant then proceeded to make inculpatory remarks constituting'a confession. He would not, however, repeat these remarks for a tape recording of his confession.

, The defendant moved to suppress his statement, but he did hot testify at the hearing on the motion which was overruled. He then changed his plea to no contest on both counts of the indictment and was found guilty. He brings this. appeal assigning the overruling of his motion to suppress as the sole error and contrary to the rule in Miranda v. Arizona (1966), 384 U. S. 436.

, :The.question presented is whether there is.a “knowing and understanding” waiver of constitutional, rights where a.,d.efendant, who has twice indicated a desire to talk to his, attorney,, is confronted with the statement of a witness involved, in a .crime who implicates such defendant, and as .a. result, of that personal confrontation, with .the witness the defendant gives an inculpatory statement to the police?,.".,..

, Under Miranda, there ,is a “heavy burden” upon the state to • show. that there was a knowing and intelligent waiver of the .defendant’s constitutional rights.. See, also, State v. Kassow (1971), 28 Ohio St. 2d 141. The court must determine from the totality of the circumstances whether there was a voluntary waiver. Schneckloth v. Bustamonte (1973), 412 U. S. 218.

The defendant argues that any re-questioning or confrontations, after a defendant indicates his desire to consult with an attorney, are prohibited by Miranda, supra. Confronting a defendant with witnesses, giving a defendant ballistics reports or a co-defendant’s statement to read, or advising a defendant that a henchman has given a statement are psyschological ploys which the rule in Miranda was designed to prevent. Some case law supports that view. Combs v. Wingo (C. A. 6, 1972), 465 F. 2d 96; United States v. Ramos (C. A. 5, 1971), 448 F. 2d 398; United States v. Barnes (C. A. 9, 1970), 432 F. 2d 89; United States v. Crisp (C. A. 7, 1970), 435 F. 2d 354.

We, however, feel that justice is better served by following the cases which hold that re-questioning or confrontation are not per se violations of Miranda. United States v. Jackson (C. A. 9, 1970), 436 F. 2d 39; Jennings v. United States (C. A. 5, 1968), 391 F. 2d 512; United States v. Collins (C. A. 2, 1972), 462 F. 2d 792; Hughes v. Swenson (C. A. 8, 1971), 452 F. 2d 866; Hill v. Whealon (C. A. 6, 1974), 490 F. 2d 629.

In Hughes, supra at 868, the court said:

“It is neither necessary nor desirable to undertake to fashion a per se rule to be applied in all cases presenting the Miranda issue. The critical question always must be: has the prosecution sustained its heavy burden of demonstrating that the defendant was effectively advised of his rights and did he knowingly and understandingly decline to exercise them?

. The court said in Collins, supra at 787:

“So long as reconsideration is urged in a careful npneoercive manner at not too great length, and. in the context that the defendant’s assertion of his right not to speak will be honored, it does not violate, the Miranda mandate.”

We believe that the facts before us fit squarely within that language in the Collins ease. We have considered the totality of the circumstances here and find that the defend ant knowingly and understanding^ waived his constitutional rights and gave the police a voluntary statement.' We, therefore, affirm the judgment of conviction.

Judgment affirmed.

Victor, P. J., and Brenneman, J., concur.