State v. Edgell

283 N.E.2d 145, 30 Ohio St. 2d 103, 59 Ohio Op. 2d 134, 1972 Ohio LEXIS 454

• Court: Ohio Supreme Court
• Decided: May 17, 1972
• Docket: No. 71-106
• Status: Published

Opinions

Schneider, J.

Matthew Zilka, for whose murder appellant was convicted, was missing for nearly 60’ hours when appellant, accompanied by his girl friend and his brother, turned up in possession of decedent’s automobile.

Acting on information given them by witnesses who saw decedent’s car on the highway, the Guernsey County authorities arrested the three in front of a tavern in Pleasant City, Ohio. At that time, the police found in appellant’s wallet Zilka’s gasoline credit card, driver’s license, social security card and the automobile license registration. Appellant’s army uniform impressed with blood stains was found in the car. The decedent’s empty wallet was found in the glove compartment. Zilka carried $135 when he left his home for work two mornings previously.

In the trunk of the automobile, the authorities found a lunch pail with an untouched lunch in it, some work clothing and a pair of boots, all the property of Zilka.

Upon being taken to the Guernsey County sheriff’s office at about 7:00 p. m. the officers, alarmed as to the whereabouts of Zilka, started the questioning of appellant, which continued intermittently until sometime late in the afternoon of the following day, at which time he finally admitted that while he had been hitchhiking he was picked up by the decedent.

In the words of the sheriff of Guernsey County, who testified at the trial:

“... He said he got into an argument and he stabbed him- At that time he told me he stabbed him twice; and he had tied him up, and he told me it was in the area of State Route 340; and at that time I knew it was in Noble County, so ... I did ask him if he got the money from Mr. Zilka at that time. He said, yes, he did, and I asked him how much, and he said he thought it was around $148 . . . I then asked him if he would go with us to where he had laid the body. . . . [Search parties had been organized and were searching all that afternoon in the general area where Zilka was last seen driving, two days before, but without success.] At first he said he didn’t think he wanted to go, and I asked him a couple more times and he said he would go. . . . When we got there Samuel [Edgell] was taken out of the car at the scene after we had found the place, and he showed us just where the area was, and he walked with us to the body in the direction, and I was slightly ahead of him there and I noticed the body, and then the coroner had taken over.”

The body was found in thick underbrush approximately 100 yards from the road, gagged, bound, and stabbed five times, once through the heart.

All of the foregoing evidence at the trial was unimpeached and uncontroverted. Defense counsel interposed no objection whatsoever to any of the testimony of the sheriff of Guernsey County, part of which has been quoted, even though no evidence was offered at the trial that the defendant, prior to making the quoted oral statement, was informed of his constitutional rights as prescribed by Miranda v. Arizona (1966), 384 U. S. 436. Moreover, defense counsel ventured no cross-examination whatsoever of that sheriff.

There is no evidence anywhere in the trial record that appellant demanded counsel, that he consulted with any other person, that he was denied normal food or sleep, that he was in any way threatened with bodily harm, or that any hope of reward or gain was extended to him.

Although we held in State v. Kassow (1971), 28 Ohio St. 2d 141, that prior to the use of an in-eustodial statement against the accused in its case in chief, the state has tbe burden of proving that the accused waived his right not to make the statement, and that the right to object to the state’s failure of that burden is not waived by the failure to file a pre-trial motion to suppress, in no case have we held, nor do we perceive that Miranda so holds, that such objection is not waived by the failure of defendant, with the presence and assistance of counsel at a trial commenced since Miranda, to interpose an in-trial objection to the admission of the statement.¹

As we have shown, such, failure occurred at the trial of this case, and the appellant does not here, nor did he in the Court of Appeals, claim error in the admission of the testimony of his oral statement.² Rather, his claim of error of constitutional proportions against him is directed solely to the introduction, as evidence in the state’s case, of a tape-recorded statement taken personally by the prosecuting attorney of Noble County, to which he was removed after the body was discovered there. His pre-trial motion to suppress, directed solely to that statement, was overruled after a preliminary hearing at which appellant testified. (He did not take the stand at his trial.)

The critical part of the transcript of the tape-recording session occurs at the beginning and is reprinted in the footnote.³ Were it not for the fact that the tape was interrupted for an indeterminate time, we would have no hesitation in upholding the trial court’s decision to overrule the motion to suppress the taped statement. The evidence would amply support a finding that appellant was not abused, threatened, pressured or coerced in any way in Noble County. As to Guernsey County, his answer to a question on cross-examination, “Did, did they [the Guernsey County officials] mistreat you in any way?” was, “No, not other than telling me my fiancee was gonna be locked up in jail.” But he admitted that “Noble County didn’t say nothing to me—Guernsey County already told me that [referring to his fiancee] and I just gathered that Noble County was going with Guernsey County.”

Even assuming that this claim of coercion should have been believed by the fact trier, we need not consider whether it was sufficient to affect either the voluntariness of the Guernsey County statement or the waiver of the right not to make it. But, see Phillips v. State (1966), 29 Wis. 2d 521. The issue on the motion to suppress was the voluntariness of the Noble County statement and the waiver of the right not to make it. That appellant “just gathered” that the same threat or promise, if in fact made, carried over to Noble County is insufficient in law to affect the validity of the statement there made.

Nor is the tape-recorded statement invalid for the reason that appellant did not expressly state his willingness to answer without the services of an attorney. See State v. Matt (1968), 251 Ore. 134, 136, and Bond v. United States (1968), 397 F. 2d 162. Appellant did not indicate on the tape in any manner that he wished to consult counsel before speaking at the recording session. Miranda v. Arizona, supra (384 U. S. 436, at 444-445).

However, we do hold that the interruption of the tape at the acute point where appellant was being questioned and warned respecting his desire for the services of counsel was a transgression of the Miranda rule and fatal to its use upon objection by the appellant. (He registered that objection by pre-trial motion to suppress.) The interruption was particularly crucial in that the tape itself indicates that the interruption was “for quite a while, and we’ve talked with you.” What transpired during the interruption was not satisfactorily explained by the prosecution.

On the other hand, appellant’s recorded statement which followed does not materially differ from the oral statement ■ related at the trial by the Guernsey County sheriff. The former merely explains that the argument arose over appellant’s request that Zilka drive him to Parkersburg, West Virginia, in payment of $30. It further explains that a knife appeared, that appellant stabbed Zilka in an attempt to defend himself, that he threw the knife away after the stabbing, and that after leaving the body in the place to which he subsequently led the police, he proceeded in the automobile to West Virginia, picked up his girl friend and then went to Massillon where his brother joined them.

As we have indicated, apart from the tape, the unchallenged evidence against appellant “was so overwhelming” (Commonwealth v. Witherspoon [1971], 442 Pa. 597, 277 A. 2d 827) that “conviction was inevitable” (Moore v. Follette [1970], 425 F. 2d 925) beyond a reasonable doubt, as was the failure to recommend mercy. Therefore, we are satisfied that the error in failing to suppress the tape was harmless (Chapman v. California [1967], 386 U. S. 18) and that the Supreme Court of Pennsylvania was correct in concluding in Commonwealth v. Padgett (1968), 428 Pa. 229, “that the United States Supreme Court would hold that Escobedo and Miranda violations are subject to the Chapman rule.”⁴ See Harrington v. California (1969), 395 U. S. 250; United States v. Sutt (C. A. 7, 1969), 415 F. 2d 1305; and United States v. Smith (C. A. 6, 1969), 418 F. 2d 223.

Appellant claims additional error in the trial court’s refusal to grant the request of court-appointed counsel to withdraw on the basis that he and the appellant were unable to get along. Under the facts surrounding appellant’s request, and especially since the request was made only four days before the date set for trial, we find no abuse of discretion in the trial court’s ruling.

We affirm the judgment of the Court of Appeals.

Judgment affirmed.

Herbert, Corrigan and Leach, JJ., concur. 0 ’Neill, C. J., and Stern, J., dissent. Brown, J., not participating.

1 In Miranda v. Arizona itself, as well as one companion case, Vignera v. New York, an in-trial objection to the confession was made. As to Westover v. United States, another companion case, the court said in footnote 69, 384 U. S., at page 495: “The failure of defense counsel to object to the introduction of the confession at trial . . . does not preclude our consideration of the issue. Since the trial was held prior to our decision in Escobedo and, of course, prior to our decision today in making the objection available, the failure to object at trial does not constitute a waiver of the claim. ...” We interpret this as a warning that henceforth from the date of that decision the failure to make an objection on the basis of Miranda, at or before trial, constitutes a waiver of a claim of a Miranda transgression. See United States v. Armetta (C. A. 2, 1967), 378 F. 2d 658.

We have found no other United States Supreme Court case, including those cited in the dissenting opinion herein, in which it was noted that no objection was made to the questioned evidence. In three cases, objection was made by way of cross-examination (Jackson v. Denno [1964], 378 U. S. 368), motion to strike (Lynumn v. Illinois [1963], 372 U. S. 528), and motion to suppress (Sims v. Georgia [1967], 385 U. S. 538).

In New York, the heavy burden is cast upon the state to prove not only the waiver as prescribed by Miranda of the right not to make an in-custodial statement, but that the statement itself was not induced by actual coercion in violation of the common law “confession rule.” Cf. State v. Kassow, supra (28 Ohio St. 2d 141). Yet, New York requires the state to notify the defense if an alleged confession will be offered at the trial, upon receipt of which the defense must, if it intends to attack the confession as involuntary, notify the prosecutor of its desire for a preliminary hearing on that issue. People v. Huntley (1965), 15 N. Y. 2d 72. Compare the Ohio Rule of Criminal Procedure 12(D) and (G), as proposed' by the Criminal Rules Advisory Committee of this court (XLIV Ohio Bar 1200, No. 39, October 11, 1971, and as submitted to the General Assembly by this court (XLV Ohio Bar 424, No. 13, March 27, 1972).

2 This case illustrates the absolute necessity, in the opinion of the majority, of a party calling to the particular attention of any court that known right or privilege which he asserts or of which he claims to have been deprived.

Had the attention of the trial court in this case been called to the claimed inadmissibility of appellant’s Guernsey County statement at any time prior to its. introduction, the trial court might have excluded it as well as the sheriff’s testimony that appellant revealed the location of the body. In this event appellant may well have been discharged for failure of the prosecution to prove either the corpus delicti of the homicide or the identity of the person involved therein or both. Thus, the necessity of a trial and two appeals would have been avoided.

3 “Prosecutor Young: You don’t need to talk any louder than you have been. I have gone over this with you before, hut I will go over it again to make sure there is no misunderstanding. Now, you have the right to remain silent. You also have the right to have a lawyer and to have that lawyer here when you talk with us, if you talk with us at all, and I want you to know that the things you say here may be used against you, and if you can’t afford a lawyer, that the county will hire one for you. Now, understanding all that, do you want to go ahead and talk with us and get off your chest what happened?

“Edgell: I want to see a lawyer sometime.

“Prosecutor Young: Alright, you certainly may see one, but do you want to—are you ready to go ahead and talk with us? Do you want to get ahold of a lawyer now?

“Edgell: I can’t afford one now.

“Prosecutor Young: Well, the county will hire one for you. I want you to understand that.

“Edgell: Before I say anything, I would like to ¡know what exactly the charges is?

“Prosecutor Young: Well, right now, we haven’t filed any charges against you, but you killed! a man. At least that’s what you told us. And, depending on your story, it will be some type of a charge. It could be anywhere from manslaughter to murder; and so right now I can’t tell you what the charge is that we will file against you. It sounds to me like second degree murder; but I want to make it clear that that’s just a guess on my part from what I have heard. I want you to know that—well, do you want to go ahead now and tell us your story and get it off your chest?

“Edgell: What does second degree murder—what does it touch, I mean how much—what’s the penalty on it?

“Prosecutor Young: I don’t know, let me check here. “(At this time the tape recorder was turned off while Mr. Young looked up the statute for Mr. Edgell.)

“(Tape continues)

“Prosecutor Young: Now, try to speak a little louder. We have had the tape recorder off here for quite a while, and we’ve talked with you. [Emphasis supplied.] Now, I understand that you are willing to give us a statement. Is that correct?

“Edgell: Yes.

“Prosecutor Young: You understand now that you have the right to remain silent. You don’t have to give us this statement, and it may be that if you decide to tell us anything, these can be used against you. You have the right to have a lawyer, and if you can’t afford a lawyer, you have the right to have the county hire one for you, and you have the right to have that lawyer present. Now, do you understand all those things? You are shaking your head yes, say yes.

“Prosecutor Young: Alright, fine. Now, knowing all those things, do you want to go ahead and give us a statement?

“Edgell: Yes, I’ll give you one.”

4 An abstract of the reasoning of the Pennsylvania court, 428 Pa., at page 233, follows:

“. . . Although Chapman did recognize the existence of the automatic reversal cases, it made no attempt to articulate the rationale separating those constitutional errors requiring automatic reversal from those to which the harmless error doctrine can be applied other than to classify the automatic reversal cases as involving ‘constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error’. . . .

. . Fortunately, however, later decisions strongly indicate that the United States Supreme Court has taken a position on the proper classifications of Escobedo and Miranda, and would hold that an Escobedo or Miranda error can be harmless. In United States v. Wade (1967), 388 U. S. 218, 87 S. Ct. 1926, drawing upon the premises of Escobedo and Miranda, it was held that a post-indictment lineup was a critical stage of the prosecution entitling the prisoner to the aid of counsel. . . . Wade’s dependence upon Escobedo and Miranda is thus indicative that the harmless error rule can be applied to Escobedo and Miranda violations.

“This observation is confirmed by Stovall v. Denno (1967), 388 U. S. 293, 87 S. Ct. 1967, the decision determining the retroactivity-prospectivity of Wade. . . .

“We are therefore confronted with a decision indicating that the Chapman doctrine can be applied to lineup cases (Wade) and another decision holding that for purposes of retroactivity Wade presents considerations markedly similar to those of Escobedo and Miranda (Stovall). ... it remains clear that one of the primary bases for both decisions is the degree of impact that the right involved has upon the fact-finding process. . . . When contrasted with the inherent unreliability of a conviction procured in the absence of counsel or on the basis of a coerced confession, a conviction obtained through use of an Escobedo or Miranda violation does not go to the very roots of fact-finding reliability, for such a statement may well be voluntary. Given the similarity of the principles governing retroactivity and those governing automatic reversal, the Supreme Court’s decision that neither Escobedo nor Miranda are retroactive and its decision that a Wade violation does not require automatic reversal, we conclude that the United States Supreme Court would hold that Escobedo and Miranda violations are also subject to the Chapman rule, a conclusion we hereby follow.”

An impeachment case, Padgett, was prior to, and did not have the benefit of, Harris v. New York (1971), 401 U. S. 222, so that Padgett is now superseded. But this does not destroy the validity of its reasoning. See State v. Adams (1970), 46 Ill. 2d 200, 263 N. E, 2d 490, affirmed, Adams v. Illinois (1972), U. S. , 31 L. Ed. 2d 202. (Coleman v. Alabama [1970], 399 U. S. 1, held not retroactive.) See, also, Schneble v. Florida (1972), 92 S. Ct. 1056 (admission of co-defendant’s statement, even if in violation of Bruton v. United States [1968], 391 U. S. 123, held harmless error).