271 N.E.2d 839 (Ohio 1971), 70-147, State v. Bolan

Docket Nº:70-147.
Citation:271 N.E.2d 839, 27 Ohio St.2d 15
Opinion Judge:LEACH, J.
Party Name:The STATE of Ohio, Appellant, v. BOLAN, Appellee.
Attorney:John T. Corrigan, Pros. Atty., and Harvey R. Monck, Cleveland, for appellant. Mr. John T. Corrigan, prosecuting attorney, and Mr. Harvey R. Monck, for appellant., Mr. Bernard Berkman, Mr. Q. Albert Corsi and Mr. Nancy C. Schuster, for appellee.
Judge Panel:C. WILLIAM O'NEILL, C. J., and SCHNEIDER, HERBERT, DUNCAN, CORRIGAN and STERN, JJ., concur.
Case Date:June 30, 1971
Court:Supreme Court of Ohio
 
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Page 839

271 N.E.2d 839 (Ohio 1971)

27 Ohio St.2d 15

The STATE of Ohio, Appellant,

v.

BOLAN, Appellee.

No. 70-147.

Supreme Court of Ohio.

June 30, 1971

Page 840

Syllabus by the Court

Where, pursuant to R.C. § 2935.041, an employee of a merchant has detained a person whom he has probable cause to believe has unlawfully taken items offered for sale by the mercantile establishment, an admission or confession made during such detention is not rendered inadmissible by the failure of such employee to fully explain to such detained person those constitutional rights set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 694.

On December 7, 1968, defendant-appellee, Erwin Bolan, a 13-year-old boy, was observed by a security officer of the May Company taking a pair of gloves from the glove counter. He followed the boy to the top of the escalator, where he then apprehended him and took him to the security office.

At the hearing before the Juvenile Court of Cuyahoga County, the security officer, in addition to testifying that he saw the defendant take the gloves, also testified that during the rest of the time in the security office 'we explained to him his rights and we had all the information from him for our reports, and he admitted to us that he did take the gloves but he was willing to pay for them because he did have $131 on him.' [27 Ohio St.2d 16]

The gloves were not introduced in evidence by the state, nor did the state have them available at the hearing.

The Juvenile Court adjudged defendant a delinquent minor and sentenced him to the Cleveland Boys School, but suspended the commitment and placed him on probation.

The Court of Appeals reversed on the basis (1) 'that the trial court failed to require the production as evidence' of the gloves, and (2) 'that a claimed oral confession was received in evidence without proof of any effective waiver of his constitutional right respecting self incrimination.'

This cause is now before this court pursuant to the allowance of a motion to certify the record.

John T. Corrigan, Pros. Atty., and Harvey R. Monck, Cleveland, for appellant.

Bernard Berkman, Q. Albert Corsi, Cleveland, and Nancy C. Shuster, for appellee.

LEACH, Justice.

Basically, this case presents three issues: (1) Whether the trial court had the duty

Page 841

'to require' the actual production of the gloves at trial; (2) whether the failure of the security officer to give all of the warnings set out in Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, renders his testimony as to any admissions or confessions made by defendant, while detained pursuant to R.C. § 2935.041, inadmissible in evidence; and (3) whether, in any event, the admission in evidence of statements made by the defendant to the security officer was 'harmless error' within the scope of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, and Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284.

Defendant does not assert that conviction of larceny (or determination of delinquency based on an act which would be larceny if committed by an adult) can never be had except upon physical presentation of the stolen merchandise at trial. Since the gist of such an offense is the unlawful taking, other evidence, including of course eyewitness testimony as to the taking itself, can supply proof beyond a reasonable doubt. [27 Ohio St.2d 17]

Instead, counsel for defendant seek to equate the failure of the trial judge to sua sponte order the production of the gloves in court as amounting to a 'suppression of evidence' in violation of due process of law. Here, counsel for defendant merely asked the security officer 'Do you have the gloves here?' When counsel received a negative response she made no demand, by subpoena or otherwise, or even any...

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