State v. Gladding

585 N.E.2d 838, 66 Ohio App. 3d 502, 1990 Ohio App. LEXIS 718

• Court: Ohio Court of Appeals
• Decided: March 5, 1990
• Docket: No. 88-L-13-200.
• Status: Published

Opinions

Christley, Presiding Judge.

On March 30, 1987, appellant Donn Paul Gladding, a juvenile, was charged with delinquency for the offenses of rape, kidnapping and theft. On May 9, 1988, the juvenile court relinquished jurisdiction and transferred the case to the Lake County Common Pleas Court, where appellant was tried as an adult. Appellant was charged with three counts: Count I, rape in violation of R.C. 2907.02; Count II, kidnapping in violation of R.C. 2905.01; and Count III, receiving stolen property in violation of R.C. 2913.51.

The case went to jury trial on October 3, 1988 and appellant was found guilty on all three counts. On October 12, 1988, the court entered judgment and appellant was sentenced to life imprisonment on Count I, an indeterminate term of six to twenty-five years on Count II, to be served consecutively to Count I, and a definite term of two years on Count III, to be served concurrently with Count I, in the Ohio State Reformatory, Mansfield, Ohio. On October 28, 1988, appellant timely filed a notice of appeal and assigns the following as error:

“1. The defendant was denied due process of law when the juvenile court would not order an independent evaluation of the defendant prior to binding over the defendant to be tried as an adult.

“2. The defendant was denied his constitutional rights when the court admitted into evidence statements made by the defendant after he had been arrested and made a request for counsel.

“3. The court committed prejudicial error and denied the defendant his constitutional rights when it overruled the motion to suppress based upon an improper warrantless arrest of the defendant in violation of the United States and Ohio Constitutions.

“4. The defendant was denied due process of law when the court refused to suppress the identification of a defendant made through suggestive pretrial identification procedures.

“5. The defendant was denied his constitutional rights of confrontation and cross-examination when the court permitted a police officer, detective Robert Jaksa, to testify as to an out-of-court identification made by Eric Prymas.

“6. The defendant was denied his right to present a defense when the court would not permit evidence of declarations against a penal interest made by Howard Gallagher to be offered in evidence.

“7. The court committed prejudicial error in denying the defendant due process of law when it permitted Barbara Caraballo to testify as to matters which did not constitute admissible evidence.

“8. The defendant was denied due process of law when it was not disclosed that the victim in this case, Jennifer Princic, had given a statement to an interviewing witness which contradicted her testimony at trial.

“9. The defendant was denied a fair trial when the court refused to grant a mistrial by reason of extraneous information coming before the trial jurors.

“10. The court committed prejudicial error in permitting not only the paying [sic ] of the tape recording of the defendant, but also to have allowed the jury to have a transcript of that hearing.

“11. The court committed prejudicial error and denied the defendant his constitutional rights when it overruled a motion to dismiss the kidnapping count of the indictment for the reason that the kidnapping count of the indictment failed to charge an offense.

“12. The defendant was denied a fair trial and the assistance of counsel where the court would not allow defense counsel to argue inferences during the course of closing argument.

“13. The defendant was denied due process of law when the court instructed the jury that the defendant had to prove an alibi by a preponderance of the evidence.

“14. The court committed prejudicial error and denied the defendant due process of law when instructing the jury that before the jury could consider the lesser included offense of gross sexual imposition it had to find the defendant not guilty of the greater offense of rape.

“15. The court committed prejudicial error and denied the defendant a fair trial when he refused to give either in form or in substance the requested special instructions tendered by the defendant.

“16. The court committed prejudicial error in overruling the motions for judgment of acquittal as there was insufficient evidence to permit a rational factfinder to find that there was sexual conduct as proscribed by the rape statute.

“17. The defendant was subjected to a cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and the cognate provisions of the Ohio Constitution when he was sentenced to a term of life imprisonment for the offense of rape.”

* * *

In his second assignment of error, appellant argues that he was denied his constitutional rights when the court failed to suppress written, recorded and oral statements, including incriminating statements, which he claims were illegally obtained after he had invoked his right to counsel. This assignment has no merit.

Appellant argues that since he had tried to contact counsel during his arrest, the police could not proceed further to administer Miranda warnings and take statements.

The record shows that during his arrest at his home, appellant’s mother called an attorney. There is some dispute as to whether appellant himself tried to speak with that attorney during the arrest. In the suppression hearing, appellant testified that he said “ * * * I want to talk to my laywer, and [the police] said no, and hung the phone up on me.” Regardless of whether that actually occurred, there is no evidence of interrogation during the arrest. Appellant was escorted to the police cruiser and given his Miranda warnings in the cruiser immediately after the arrest. There is no testimony to show that appellant subsequently asserted his right to counsel while in the cruiser.

Later at the police station, in the presence of his mother, appellant was once again given his Miranda warnings. At this time the following colloquy took place:

“[Appellant:] Yes. There’s only one question I have. If I wanted a lawyer, would I have to wait a couple days, or have him come down now?

“[Officer:] If you get one to come down now, you are very free to call one and get one to come down. The court won’t appoint you one until you go to court and at that point, I would say to you don’t talk to us till you go to court, okay, and talk to an attorney.

“But, if you want to talk to us without an attorney, this is the chance to do it. And, it’s your decision and you and your mother talk about it, you have already.

“[Appellant:] I’d like to see if I can get my lawyer to come down.

“[Appellant’s Mother:] He said he couldn’t come down tonight, but he said he could talk to you tomorrow.

“[Appellant:] Well, I’ll just go ahead with it.

“[Officer:] Okay, this is what the two of you want, to go ahead and do this?

“[Appellant:] Yes.”

Both the state and appellant (although appellant’s argument is somewhat vague) address the issue of whether or not appellant’s mother could invoke his right to counsel for him at the time of his arrest preceding his arrival at the police station. However, this issue is a red herring. Even if appellant’s mother could invoke his right to counsel at that time, or even if appellant himself did try to contact an attorney during the arrest, it makes no difference, since the right to counsel does not attach at the moment of arrest.

In support of his position, appellant cites Edwards v. Arizona (1981), 451 U.S. 477, 484, 101 S.Ct. 1880, 1884, 68 L.Ed.2d 378, 386, wherein the court held that “when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.” However, the facts of Edwards show that the defendant invoked his right to counsel during interrogation. In this case, appellant is claiming that his right to counsel was effectively invoked during his arrest.

In State v. DePew (1988), 38 Ohio St.3d 275, 278, 528 N.E.2d 542, 548, the court held:

“Appellant next argues that his right to counsel attached at the moment of his arrest, and that any interrogation was improper after the arrest, since appellant claims to have requested a lawyer at that time. Edwards v. Arizona (1981), 451 U.S. 477 [101 S.Ct. 1880, 68 L.Ed.2d 378]. However, as noted above, the trial court found that no such request was communicated to the officers at the time of the arrest. Moreover, the right to counsel has consistently been viewed as attaching at trial, and at ‘critical’ stages of the proceedings before trial where ‘ “the accused [is] confronted, just as at trial, by the procedural system, or by his expert adversary, or both.” ’ United States v. Gouveia (1984), 467 U.S. 180, 189 [104 S.Ct. 2292, 2298, 81 L.Ed.2d 146, 155], citing United States v. Ash (1973), 413 U.S. 300, 310 [93 S.Ct. 2568, 2574, 37 L.Ed.2d 619, 627]. The time of appellant’s arrest cannot possibly be described as a ‘critical’ stage involving any such confrontation. All the evidence at the suppression hearing, including appellant’s own testimony, established that there was no interrogation of appellant either at the time of the arrest or in the car on the way to the prosecutor’s office. Mere arrest and transportation does not constitute a ‘confrontation’ similar to a trial. Appellant’s confession was properly admitted into evidence.” (Emphasis sic.)

Appellant tries to distinguish DePew on its facts. However, DePew is unequivocal as to when the right to counsel attaches and that the right to counsel does not attach at arrest.

Furthermore, a telephone call to an attorney is not necessarily tantamount to a request for present assistance of counsel. In Gorel v. United States (S.D.Tex.1981), 531 F.Supp. 368, a suspect’s wife attempted to contact an attorney while her husband was being interrogated in their home by F.B.I. agents. The court found, from the totality of the circumstances of the case, that the calls on defendant’s behalf were not present attempts by him to invoke the right to counsel. Rather it found, based on the defendant’s testimony, that those efforts were to obtain a lawyer for future defense. While the court admitted that there was a presumption that an effort to reach an attorney is an invocation of the present right to counsel, the court stated that it would “not construe any mention of an attorney as an invocation of the right-to-counsel or as an equivocal request for counsel which forecloses interrogation.” Id. at 371.

In this case, the surrounding circumstances show that appellant’s requests to talk to an attorney were an attempt to obtain counsel for future defense rather than an invocation of a present right to counsel. Further, the tape transcript previously quoted shows that appellant talked himself into going forward without encouragement from the police.

In his third assignment of error, appellant argues that the court erred when it overruled his motion to suppress statements which followed an improper warrantless arrest. This assignment has no merit.

The lower court found that the warrantless arrest was valid because of exigent circumstances. In State v. Williams (1983), 6 Ohio St.3d 281, 6 OBR 345, 452 N.E.2d 1323, at paragraph one of the syllabus, the court held that “[a] warrantless arrest in a suspect’s home may be valid if necessitated by exigent circumstances or performed in ‘good faith’ compliance with standards of conduct which, at the time of the arrest, were permissible.”

In this case, the record shows that the rape and kidnapping occurred on Friday morning, March 27, 1987. Appellant’s identity did not become established until that evening when the courts were closed and the police were having difficulty locating anyone in authority. The police called appellant’s home and were told that he was in Lorain or Elyria and that the family was going to be leaving either that night or early the next morning to go to Georgia. Appellant had fled the jurisdiction in the past when he had been wanted on charges. Thus, it appears that there were sufficient exigent circumstances to validate this warrantless arrest pursuant to Williams, supra.

This court notes that there was an irregularity in appellant’s arrest which needs to be addressed. The record shows that when the police arrested appellant in his home, they told him it was for burglary. It was not until appellant was in the cruiser that the police told him that the arrest was for rape and kidnapping. While there is evidence establishing probable cause for the arrest on kidnapping and rape, there is nothing in the record to establish that there was probable cause for an arrest for burglary. Appellant was never charged with burglary.

R.C. 2935.07 provides that “[w]hen an arrest is made without a warrant by an officer, he shall inform the person arrested of such officer’s authority to make the arrest and the cause of the arrest.” In State v. Fairbanks (1972), 32 Ohio St.2d 34, 61 O.O.2d 241, 289 N.E.2d 352, paragraph four of the syllabus, the court held:

“Where probable cause exists for an arrest by a police officer, the failure to notify the accused of the cause of his arrest does not render the arrest illegal if he is notified of the offense with which he is charged soon after he is taken into custody.”

The facts in Fairbanks differ from those in the case at bar in that in Fairbanks, the defendant-appellant was carrying a concealed weapon and had run from the police officers. In this case, the police initially lied to appellant as to the real reason for his arrest. While there do not appear to be any Ohio cases directly on point, in Gibson v. State (Fla. 3rd DCA 1979), 368 So.2d 667, the court was faced with a similar situation:

“Gibson’s subsequent arrest was in turn founded upon probable cause to believe that he had committed the felony of the possession of that heroin; it was therefore lawfully effected notwithstanding the fact that the officer formally stated that he was arresting Gibson for loitering and prowling, rather than possession, Maddox v. State, 236 So.2d 469 (Fla. 1st DCA 1970); Hoskins v. State, 208 So.2d 145 (Fla. 3rd DCA 1968). Hence, the court also rightly refused to suppress additional heroin and a quantity of cocaine which was discovered upon a search of the defendant’s person after and incident to the thus-lawful arrest. Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973).” Id. at 668.

In this case, as soon as appellant was taken from his home and put into the police cruiser, he was told that the arrest was for rape and kidnapping. At the suppression hearing, the police testified that the reason they did not immediately tell appellant the actual reason for the arrest was that appellant and various members of his family who were present during the arrest were so upset that it would have created “more confusion, more emotion at that time.” From the arresting officer’s testimony, it is apparent that the police felt that they were in a volatile and potentially dangerous situation, thus justifying the initial lie.

It does not appear that appellant was prejudiced in any way by this irregularity. No evidence ultimately used at trial was obtained during this interval. Before being given his Miranda warnings in the cruiser, appellant was told the true nature of his arrest. This was done soon after appellant was taken into custody in conformance with Fairbanks, supra. Thus, although this type of irregularity in police procedure is undesirable, its presence does not invalidate appellant’s arrest.

Furthermore, “[e]ven if an arrest is illegal, it does not amount to a denial of due process and does not furnish, after conviction, grounds for relief * * *. This principle was established * * * in the case of Brown v. Maxwell (1962), 174 Ohio St. 29 [21 O.O.2d 285, 186 N.E.2d 612].” Fairbanks, supra, 32 Ohio St.2d at 41, 61 O.O.2d at 246, 289 N.E.2d at 357.

In his thirteenth assignment, appellant argues that the court erred when it instructed the jury that he had to prove an alibi by a preponderance of the evidence.

“Alibi is not an affirmative defense. Thus no burden of proof is placed upon one asserting alibi. Alibi is used to support the general plea of not guilty and simply applies to the claim that the defendant was elsewhere when the crime was committed. State v. Payne (1957), 104 Ohio App. 410 [5 O.O.2d 87, 149 N.E.2d 583].” State v. Snider (July 29, 1988), Portage App. No. 1838, unreported, 1988 WL 81309.

In this case, the court incorrectly instructed the jury that appellant had to prove his alibi by a preponderance of the evidence.

The state argues that appellant failed to make an effective objection to the instruction, thereby waiving any error unless this court wishes to address the error as “plain error.” See State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804; and State v. Craft (1977), 52 Ohio App.2d 1, 7, 6 O.O.3d 1, 4, 367 N.E.2d 1221, 1227-1228. Crim.R. 30 provides that “[a] party may not assign as error the giving or the failure to give any instructions unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection.”

A review of the transcript shows that appellant’s counsel did not specifically use the words “I object.” However, he did question the instruction and expressed his doubts about its accuracy, thus bringing the error to the trial court’s attention at a time when the court could have given a corrective instruction. We find appellant’s actions constitute an objection sufficient to bring the matter before this court for review.

In State v. Walker (1981), 2 Ohio App.3d 483, 2 OBR 610, 442 N.E.2d 1319, at the syllabus, the court held that “[a] jury instruction which requires the defendant to prove the defense of alibi beyond a reasonable doubt constitutes plain error to the prejudice of the defendant. * * * ” However, the court in Walker distinguished the case before it from the case in State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, as follows:

“ * * * In that case the Supreme Court of Ohio held that a jury instruction which requires the defendant to prove self-defense by a preponderance of the evidence does not constitute plain error unless, but for the error, the outcome of the trial clearly would have been otherwise. Although State v. Long, supra, and the case sub judice both concern instructions which incorrectly place the burden of proof upon the accused, the case can be distinguished. The instructions given in State v. Long, supra, required the defendant to prove self-defense by a preponderance of the evidence; the instructions given in the case sub judice required appellant to prove alibi beyond a reasonable doubt. Both instructions were incorrect, but in requiring that appellant prove his alibi beyond a reasonable doubt the court below placed a heavier burden upon him than was placed upon the defendant in State v. Long, supra. Thus, the court below committed a greater error. The erroneous instruction ‘could not have done other than mislead the jury,’ State v. McRae (Feb. 27, 1980), Hamilton App. No. C-790240, unreported, and could have led to a ‘manifest miscarriage of justice.’ * * * ” Walker, at 484, 2 OBR at 611, 442 N.E.2d at 1320-1321.

In this case, unlike the court in Walker, we cannot conclude that the trial court’s error in instruction served to mislead the jury. The evidence against appellant was overwhelming and included eyewitness identification and appellant’s own incriminating statements. The testimony of the alibi witnesses that appellant was with them when the crime was committed was incredible and contradictory, both to each other’s testimony and to that of appellant. Moreover, one of appellant’s two alibi witnesses actually damaged appellant’s case by admitting that on the morning of the crime, appellant told him “he was going to go and steal a Lockie Lee Dairy Truck.” This corroborated the victim’s testimony that appellant had put her in a Dairyman’s truck. Further more, appellant’s own statement to the police, which was before the jury, contradicted his alibi:

“Well, I got up at 6:30 and left my house about seven o’clock and I was walking around and when I ran away before, I took some acid with this one kid and every once in a while I take off by myself because I start * * * I freak out a little bit every once in a while. And, that’s a problem I have which I kept to myself and I didn’t say anything to my counselor or anything and I just walked by. * * * I asked her if she knew where her school was and I just grabbed her and took her to the truck.”

Even though the trial judge’s error was gross, we cannot say that it misled the jury, given the overwhelming evidence of appellant’s guilt. In a case where the evidence is not so overwhelming, this court would have no other choice but to reverse. Fortunately, in this instance, we are convinced the outcome of the trial would not have been any different, even with a correct instruction on the issue of alibi. This error of the trial court under these facts did not result in a miscarriage of justice. Crim.R. 52(A) provides that “[a]ny error, defect, irregularity, or variance which does not affect substantial rights should be disregarded.”

We do not find our present analysis to be in conflict with our holding in Snider, supra, particularly since Snider was not a jury trial but a trial to court. There, the Snider trial court erroneously stated in its pronouncement of judgment that defendant failed to prove his alibi by a preponderance the evidence. In the instant case, we find no such element of reliance by the trier of fact.

Therefore, although this court finds that the trial court erred in its instruction, we nevertheless find that this error was harmless and nonprejudicial to appellant.

In his seventeenth assignment of error, appellant argues that his life sentence for rape constituted cruel and unusual punishment. This assignment is not well taken.

Appellant apparently was sentenced pursuant to R.C. 2907.02(B), which provides as follows:

“(B) Whoever violates this section is guilty of rape, an aggravated felony of the first degree. If the offender under division (A)(1)(b) of this section purposely compels the victim to submit by force or threat of force, whoever violates division (A)(1)(b) of this section shall be imprisoned for life.” (Emphasis added.)

R.C. 2907.02(A)(1)(b) prohibits sexual conduct when “[t]he other person is less than thirteen years of age, whether or not the offender knows the age of such person.”

Generally, if a sentence falls within the terms of a valid statute, it cannot amount to cruel and unusual punishment. See McDougle v. Maxwell (1964), 1 Ohio St.2d 68, 69, 30 O.O.2d 38, 39, 203 N.E.2d 334, 336. “[Punishments which are prohibited by the Eighth Amendment are limited to torture or other barbarous punishments, degrading punishments unknown at common law, and punishments which are so disproportionate to the offense as to shock the moral sense of the community.” Id. at 69, 30 O.O.2d at 39, 203 N.E.2d at 336. See, also, State v. Chaffin (1972), 30 Ohio St.2d 13, 59 O.O.2d 51, 282 N.E.2d 46, paragraph three of the syllabus, wherein the court held that “[a] punishment does not violate the constitutional prohibition against cruel and unusual punishments, if it be not so greatly disproportionate to the offense as to shock the sense of justice of the community.”

In this case, considering the heinousness of the crime of raping a nine-year-old child, it cannot be said that appellant’s sentence was disproportionate or shocking to the moral sense of the community.

The judgment of the trial court is affirmed.

Judgment affirmed.

Joseph E. Mahoney, J., concurs. Ford, J., dissents.