State v. Moody

377 N.E.2d 1008, 55 Ohio St. 2d 64, 9 Ohio Op. 3d 71, 1978 Ohio LEXIS 617
CourtOhio Supreme Court
DecidedJuly 12, 1978
DocketNo. 77-1225
StatusPublished
Cited by128 cases

This text of 377 N.E.2d 1008 (State v. Moody) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Moody, 377 N.E.2d 1008, 55 Ohio St. 2d 64, 9 Ohio Op. 3d 71, 1978 Ohio LEXIS 617 (Ohio 1978).

Opinion

Per Curiam.

In his first three propositions of law appellant contends that it was reversible error for the trial court to admit in evidence certain inculpatory statements made by him to the police as well as other evidence elicited or obtained from him during his detention, since he was not provided his federal constitutional and state statutory (R. C. 2935.20) rights to counsel; that there was no voluntary waiver of the Miranda rights by the accused in this cause, since he was not permitted to make telephone calls after his detention by the police; and, irrespective of the fact that no pretrial motion to suppress was filed on these issues, the above issues were not waived, since the issues [65]*65only became known during trial and “immediately upon its emergence at trial defense counsel preserved the issue by objection.”

The court finds the last issue to be dispositive of appellant’s three propositions of law.

Crim. R. 12(B) provides:

“Any defense, objection, or request whioh is capable of determination without the trial of the general issue may be raised before trial by motion. The following must be raised before trial:

tl # # *

“(3) Motions to suppress evidence, including but not limited to statements and identification testimony, on the ground that it was illegally obtained. * * *”

Crim. R. 12(G) provides further, in pertinent part: •

“Failure by the defendant to raise defenses or objections or to make requests which must be made prior to trial * * * shall constitute waiver thereof, but the court for good cause shown may grant relief from the waiver.”

This court held in paragraph three of the syllabus in State v. Wade (1978), 53 Ohio St. 2d 182, that:

“The failure to move within the time specified by Crim. R. 12(C) for the suppression of evidence on the basis of its illegal obtainment constitutes a waiver of the error. ’ ’

In the instant cause, appellant filed a pre-trial motion to suppress certain identification testimony to be introduced at trial on direct examination of the complainant. During the “suppression” hearing, the defense had an opportunity to question three police officers who were with the defendant on the day of his arrest and were involved in the identification process. In cross-examining Lt. Dean Gerkens, the defense asked the witness numerous questions concerning whether the defendant was permitted to make a telephone call, to which the witness responded at one point that the defendant was not permitted to do so until after charges were filed. The defense specifically commented:

“Q. [Mr. Wittenberg] Okay, so from 2:30 [p. m.] to [66]*66maybe around 6:00 o’clock Mr. Moody was not allowed to make a phone call, is that correct?”

“A. [Lt. Gerkens] Yes.”

Appellant made no motion to suppress any statements made by the defendant to the police at this time, the court denied his motion to suppress the identification testimony, and trial commenced. During trial, the defense, throughout its cross-examination of the three police officers whom it had originally questioned at the suppression hearing, asked several questions of each concerning whether the defendant was properly informed of his Miranda rights and properly given the opportunity to obtain counsel under R. 0. 2935.20. However, it was not until after the questioning of six additional witnesses that the defense submitted a motion to strike the testimony of the three police officers containing statements made to them by the defendant while he was in custody on April 20, 1976.

We find no reversible error committed by the trial court in denying appellant’s motion. The defense had ample opportunity before trial to determine whether the police authorities adequately afforded the defendant his constitutional and statutory rights to counsel. Through the cross-examination of Lt. Gerkens, the defense became aware of the fact that Moody was not given the opportunity to make telephone calls on the day of his arrest. However, the defense did not pursue the issue at the time.

Clearly, by failing to timely file his motion to suppress before trial, the appellant waived any error. See United States v. Sisca (C. A. 2, 1974), 503 F. 2d 1337, 1349, certiorari denied 419 U. S. 1008; United States v. Farnkoff (C. A. 1, 1976), 535 F. 2d 661, 663-664; and Commonwealth v. Hubbard (1977), 472 Pa. 259, 372 A. 2d 687, 692-694.

Appellant’s first three propositions of law are, therefore, overruled.

In his fourth proposition of law, appellant contends that it was reversible error for the trial court to admit in evidence the testimony of the complainant identifying Mbody as her attacker.

[67]*67The allegedly suspect identification procedure involved the showing of five photographs to the complainant on the day after the attack. Complainant stated that before she attempted to identify the defendant’s picture, the police had told her that a suspect had been picked up who resembled the image of the composite picture drawn up according to her description, and that they had taken some photographs of him. Of the five pictures to be used in the identification process, all were black males. However, in four of the photographs, the individuals were standing in front of a height chart, and only the defendant appeared to fit the height description furnished by the complainant. Also, of the five photographs, appellant was the only individual who apparently had a moustache.

Although the identification procedure may have contained notable flaws, this factor does not, per se, preclude the admissibility of the subsequent in-court identification. See State v. Barker (1978), 53 Ohio St. 2d 135, 142-143. As noted in Manson v. Brathwaite (1977), 432 U. S. 98, 53 L. Ed. 2d 140, 154, “ * * * reliability is the linchpin in determining the admissibility of identification testimony * * The factors affecting reliability include “* * * the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Neil v. Biggers (1972), 409 U. S. 188, 199. Thus, although the identification procedure is suggestive, so long as the challenged identification itself is reliable, it is admissible. Manson, supra, at 151.

In the instant cause, the complainant testified that she was with the defendant on the night of the attack for approximately 35 to 40 minutes. The night was clear and the moon was out. At the place where she was attacked there was a tall night light illuminating the surrounding area where she was sitting. Thus, the complainant had a sufficient opportunity to view the defendant at the time of the crime.

[68]*68With respect to the degree of attention focused by complainant on her assailant, the complainant testified that throughout her ordeal, she attempted to observe any noticeable features of the assailant.

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Cite This Page — Counsel Stack

Bluebook (online)
377 N.E.2d 1008, 55 Ohio St. 2d 64, 9 Ohio Op. 3d 71, 1978 Ohio LEXIS 617, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-moody-ohio-1978.