State v. Sneed

584 N.E.2d 1160, 63 Ohio St. 3d 3, 1992 Ohio LEXIS 215
CourtOhio Supreme Court
DecidedFebruary 12, 1992
DocketNo. 89-1291
StatusPublished
Cited by193 cases

This text of 584 N.E.2d 1160 (State v. Sneed) 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. Sneed, 584 N.E.2d 1160, 63 Ohio St. 3d 3, 1992 Ohio LEXIS 215 (Ohio 1992).

Opinions

Holmes, J.

Appellant has raised thirty-two propositions of law. Each has been thoroughly reviewed and, for the reasons stated below, we find all to be without merit, and uphold appellant’s convictions and death sentence.

I

In his first proposition of law, appellant argues that the trial court should have suppressed a handgun obtained by a warrantless search of his apartment. The handgun, a .25 caliber Raven-Arms automatic, was discovered in appellant’s apartment under the mattress of the bed he shared with Roxanne Goosby. Subsequent ballistic tests verified that this was the weapon used to kill Rowan.

The search was conducted on December 7, 1984 after appellant was arrested and taken into custody on the assault charge filed by Roxanne Goosby, appellant’s girlfriend. Prior to the police leaving with appellant, parole officers questioned appellant about allegations that he possessed a gun, a violation of his parole. The parole officers also requested permission to search appellant’s home at 1460 Water Court. Appellant voluntarily gave his permission and stated that “he had nothing to hide.” The parole officers as well as one of the arresting officers attested to appellant’s consent.

Goosby testified at the suppression hearing that she gave her written consent to search the subject premises to Munford when he met her at the hospital on December 6, 1984. Goosby related that although the lease was in appellant’s name, she and appellant shared rental payments. In addition, the testimony of the landlady, Mary Alice Mosley, revealed that rental arrangements were made by both appellant and Goosby and they shared the apartment and rent payments as a couple.

While it is true that the parole officers conducted a warrantless search of the apartment located at 1460 Water Court, this does not mandate that we hold that the gun should have been suppressed as the fruit of an illegal search. Wong Sun v. United States (1963), 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. The United States Supreme Court has held that “searches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment — subject [7]*7only to a few specifically established and well-delineated exceptions.” Katz v. United States (1967), 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585. One such recognized exception is the proper consent to search the premises given voluntarily. United States v. Matlock (1974), 415 U.S. 164, 165-166, 94 S.Ct. 988, 990, 39 L.Ed.2d 242, 246. It is well settled that consent to a warrantless search will not be held invalid nor the resulting search unreasonable when one with authority over the premises voluntarily permits the search. See Schneckloth v. Bustamonte (1973), 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854. This is equally true when authority over the premises is shared with another. See United States v. Matlock, supra, 415 U.S. at 171, 94 S.Ct. at 993, 39 L.Ed.2d at 249-250. “ * * * [W]hen the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.”

This court had the opportunity to review a similar issue in State v. Greer (1988), 39 Ohio St.3d 236, 530 N.E.2d 382, certiorari denied (1989), 490 U.S. 1028, 109 S.Ct. 1766, 104 L.Ed.2d 201. At issue in Greer was the admission into evidence of certain items obtained by a warrantless search of appellant’s residence. We found that since the appellant’s girlfriend and co-resident voluntarily permitted the search, the appellant’s constitutional rights were not infringed. Therefore, even if we were to hold that valid consent was not obtained from appellant by the police in the instant case, we would still uphold the legality of the search based upon the permission granted to search the premises by a co-resident of the apartment.

We find that the record clearly demonstrates that the prosecution met its burden of proving consent to search the premises and, therefore, based upon the evidence produced in the suppression hearing, we hold that the trial court was justified in overruling the motion to suppress.

II

In his second proposition of law, appellant argues that the trial court deprived him of a fair trial by refusing to allow him to use the grand jury testimony of a state’s witness to impeach that witness. This is not an issue concerning the trial court’s refusal to disclose grand jury proceedings for defendant’s counsel’s inspection; the record clearly reflects that defendant was given an opportunity to review a transcript of the grand jury testimony of Roxanne Goosby prior to cross-examination. Rather, defendant’s argument is essentially that the trial court erred in finding that Goosby’s grand jury [8]*8testimony was not inconsistent with taped statements she gave at the police department.

We overrule defendant’s proposition of law. Initially, we note that appellant did not preserve the grand jury testimony for the record. As a reviewing court, we cannot make any finding without having a full and complete review of the alleged inconsistent grand jury testimony. Because we find that the trial judge was in a position to evaluate firsthand the grand jury testimony and the transcript of the police statements, we hold that the record does not reveal an abuse of discretion on the part of the trial court in its denial of appellant’s request to allow use of the grand jury testimony to cross-examine a state’s witness.

Ill

In his third proposition of law, appellant contends that the trial court committed reversible error by failing to give appellant’s requested special instruction on accomplice credibility to the jury. That proposed instruction read:

“An alleged accomplice does not become incompetent as a witness merely because of participation with others in a criminal act or acts charged. However, the jury should keep in mind that the testimony of an alleged accomplice, if you decide he or she was an accomplice, should be closely examined, received with caution and weighed with great care because of his or her motivation to falsify.” 1

[9]*9The state acknowledges that the above-requested instruction was timely-made by the appellant after closing argument. However, the record fails to disclose the trial court’s reason for not including the proposed instruction in the general jury charge. Nevertheless, we agree with the trial court’s decision because an instruction to the jury that the testimony of an accomplice is to be “received with caution” is an improper comment upon the evidence. See State v. Flonnory (1972), 31 Ohio St.2d 124, 60 O.O.2d 95, 285 N.E.2d 726, paragraph four of the syllabus.2

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Cite This Page — Counsel Stack

Bluebook (online)
584 N.E.2d 1160, 63 Ohio St. 3d 3, 1992 Ohio LEXIS 215, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sneed-ohio-1992.