State v. Ostrowski

282 N.E.2d 359, 30 Ohio St. 2d 34, 59 Ohio Op. 2d 62, 1972 Ohio LEXIS 476
CourtOhio Supreme Court
DecidedApril 26, 1972
DocketNo. 71-410
StatusPublished
Cited by27 cases

This text of 282 N.E.2d 359 (State v. Ostrowski) 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. Ostrowski, 282 N.E.2d 359, 30 Ohio St. 2d 34, 59 Ohio Op. 2d 62, 1972 Ohio LEXIS 476 (Ohio 1972).

Opinion

Leach, J.

The decision of the Court of Appeals, reversing the judgment of delinquency, set forth “four grounds for doing so on the record in this case.” Essentially, the Court of Appeals held that the trial court had erred (1) in not suppressing the handwriting exemplar, (2) [37]*37in excluding the parents from the courtroom until they had testified as witnesses, under an order for the separation of witnesses, (3) in the exclusion of certain testimony on the basis of noncompliance with the requirements of R. 0. 2945.58, relative to notice of intention to claim an alibi, and (4) in the overruling of a motion to strike certain testimony of the Fire Chief of Independence, Ohio. On consideration of the issues presented herein, we find ourselves in disagreement with the Court of Appeals, and, thus, we reverse.

I

The Court of Appeals concluded that the handwriting exemplar should have been suppressed, both on the basis of the Fifth Amendment privilege against self-incrimination and on the basis of the Fourth Amendment privilege against “unreasonable searches and seizures.” In concluding a Fifth Amendment violation, the Court of Appeals attached particular significance to the fact that the handwriting exemplar contained “the very words written on the mirror” and “thus should have been suppressed on this ground.” Essentially it appears to have been the view of the Court of Appeals that the exemplar thus had a “special testimonial value,” and thus was required to be suppressed in the admitted absence of any Miranda warnings.

In support of this premise the court cited two cases, Serao v. United States (1968), 390 U. S. 202, and United States v. Green (1968), 282 F. Supp. 373. In Serao, the United States Court of Appeals of the Second Circuit (367 F. 2d 347) had rejected the defendant’s claim that the Fifth Amendment privilege could be a basis for excluding a handwriting specimen of the defendant, originally executed as a communicative writing but which was used solely as a handwriting standard for identification purposes and which did not communicate any information relating to the issues being tried. While, as noted in the Court of Appeals decision, the judgment of the Second Circuit Court of Appeals in Serao was reversed by the United States Supreme Court, its short per curiam opinion (390 U. S. 202) [38]*38merely ordered that “the judgments of the courts below are vacated and the cases are remanded for further consideration in the light of Marchetti v. United States,” 390 U. S. 39.

The holding of the United States Supreme Court in Marchetti was not concerned in any way with handwriting exemplars. Instead, it held that the statutory obligations to register and to pay an occupational tax for engaging in the business of accepting wagers, as required by federal statutes, were essentially inseparable elements of a single registration procedure; that for purposes of the constitutional privilege against self-incrimination, wagering is an area permeated with criminal statutes; and thus that persons asserting the constitutional privilege against self-incrimination could not be convicted for failing to comply with these statutory requirements.

The Green case, supra, involved an action wherein the government sought a court order to compel the defendant to furnish a handwriting exemplar displaying selected phrases allegedly germane to the prosecution. The United States District Court for the Southern District of Indiana refused to so order, pointing out that since the defendant was employed by the United States, the government already had samples of his handwriting available through this employment. That court attempted to distinguish the holdings of the United States Supreme Court in Schmerber v. California (1966), 384 U. S. 757, and Gilbert v. California (1967), 388 U. S. 263, upon the basis that in Gilbert the defendant had voluntarily given handwriting exemplars, and upon the basis, with which we are not in agreement, that “the result of requiring the accused to write his name would have the same far-reaching effect as if the accused were required to make a verbal or written admission.”

In the instant case, it is admitted that the exemplar was given voluntarily. An examination of the exemplar clearly indicates that it contains nothing “testimonial” in character, and from an evidentiary standpoint it was used solely for handwriting identification purposes. While it did contain three of the four words printed on the mirror, [39]*39it also contained, on what appears to be a standard form of the detective bureau, James Ostrowski’s printing of some fourteen names, three street addresses, and all of the Arabic numerals. The expert testimony, both of the prosecution and the defense, was not limited merely to a comparison of the three words which appeared both on the mirror and on the exemplar.

Schmerber, supra, at page 764, draws a distinction between “communications” or “testimony” and “that compulsion which makes a suspect or accused the source of ‘real or physical evidence.’ ” In this connection, see the opinion of Mr. Justice Holmes in Holt v. United States (1910), 218 U. S. 245. That the principle announced in Holt and Schmerber is applicable to handwriting exemplars has been recognized in Gilbert v. California, supra (388 U. S. 263):

“* * * The taking of the exemplars did not violate petitioner’s Fifth Amendment privilege against self-incrimination. The privilege reaches only compulsion of ‘an accused’s communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one’s papers,’ and not ‘compulsion which makes a suspect or accused the source of “real or physical evidence”. . . .’ Schmerber v. California, 384 U. S. 757, 763-764. One’s voice and handwriting are, of course, means of communication. It by no means follows, however, that every compulsion of an accused to use his voice or write compels a communication within the cover of the privilege. A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection. United States v. Wade, supra, at 222-223 * * *.”

In United States v. Wade (1967), 388 U. S. 218, 222, decided the same day as Gilbert, the court stated that “compelling Wade to speak within hearing distance of the witnesses, even to utter words purportedly uttered by the robber, was not compulsion to utter statements of a ‘testimonial’ nature”; that such compulsion only required the [40]*40defendant “to nse a voice as an identifying physical characteristic, not to speak his gnilt.”

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Bluebook (online)
282 N.E.2d 359, 30 Ohio St. 2d 34, 59 Ohio Op. 2d 62, 1972 Ohio LEXIS 476, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ostrowski-ohio-1972.