State v. Gallagher

• Decision Date: 30 May 1973
• Parties: , 65 O.O.2d 17 The STATE of Ohio, Appellee, v. GALLAGHER, Appellant.
• Court: Ohio Court of Appeals

Page 29

36 Ohio App.2d 29

301 N.E.2d 888, 65 O.O.2d 17

The STATE of Ohio, Appellee, v. GALLAGHER, Appellant.

Court of Appeals of Ohio, Second District, Montgomery County.

May 30, 1973.

Syllabus by the Court

Statements made by an accused to a parole officer, whose acquaintance stems from a previous offense, concerning the crime with which he is charged are admissible in evidence against him even though such officer failed to inform him of his Miranda rights, where such rights were explained to him at the time of his arrest.

Lee C. Falke, Pros. Atty., and Randal A. Anderson, Jr., Dayton, for appellee.

Jack T. Schwarz, Dayton, for appellant.

SHERER, Judge.

Defendant, the appellant herein, is appealing from a conviction of the armed robbery of a Xenia Avenue 7-11 Store on or about May 27, 1972. He was tried without a jury and sentenced for from ten to twenty-five years in the Ohio State Penitentiary.

Defendant claims as assignments of error the refusal of the trial judge to suppress the statement defendant made to his parole officer, William Sykes, and the judge's failure to direct a verdict in favor of defendant at the end of the State's case.

The record shows that on or about the afternoon of May 27, 1972, Alex Dean, an employee of the 7-11 Store, was robbed at gunpoint of approximately $350 by two young men. He testified that while the two men stood within arm's length of each other, defendant's accomplice held the gun, did all the talking, and received the money. The two men then left the store together.

Although there were two female adults who were in the store at the time and corroborated Mr. Dean's account of the robbery, only Mr. Dean was able to later identify defendant as one of the robbers, which he did from a group of photographs shown to him by the Dayton police.

At the trial of this cause, William Sykes, a parole officer assigned to defendant when he was released from prison on a previous conviction, was permitted to testify, over objection, that he conversed with defendant on two separate occasions while defendant was incarcerated after his arrest on the present charge. The first conversation occurred on June 26, 1972, at which time defendant told Mr. Sykes he did not wish to discuss the incident. Mr. Sykes testified that at the second meeting, on July 3, 1972, defendant admitted to him that he went to the 7-11 Store on the day in question with the man who robbed the store, that he had a weapon, that he was prepared to use it, and that he and the robber acted in concert. Mr. Sykes further testified that he at no time advised defendant of his rights to remain silent, to have an attorney present, and that anything he said could be used against him.

It is the trial court's admission of Mr. Sykes' testimony, which is averred to be a violation of the constitutional requirements of Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, that defendant raises as his first assignment of error.

The issue of whether a parole or probation officer is a 'law enforcement officer' within the contemplation of Miranda and thus subject to the Miranda requirements of constitutional warnings to suspects during custodial interrogation has not yet been decided in Ohio. But a review of cases in other jurisdictions reveals that decisions have gone both ways.

In State v. Lekas (1968), 201 Kan. 579, 442 P.2d 11, the Supreme Court of Kansas held that officers of the Kansas state board of probation and parole are required to comply with the mandates of Miranda if, while investigating a fresh felony by a parolee, they elicit incriminating statements later admitted into evidence in the prosecution of that new offense. In Lekas and two cases which concur with it, State v. Williams (Mo.Sup.Ct.1972), 486 S.W.2d 468, and People v. Gastelum (1965), 237 Cal.App.2d 205, 46 Cal.Rptr. 743, the defendant had not been given the full Miranda warnings at any time previous to the questioning by the parole officer.

In State v. Johnson (1972), 202 N.W.2d 132, the South Dakota Supreme Court held differently by distinguishing a parole or probation officer from the 'law enforcement officer' envisioned in Miranda, stating at page 133, 134:

'It is the duty of a law enforcement officer to detect crime and enforce the criminal laws of the state. * * * The duty of a probation officer is the antithesis of this. His duty begins when the peace officer's duty ends. He does not have a peace officer's broad power of arrest. He has only the limited authority to take and detain a probationer when the terms of the suspension or probation have not been observed or when it is necessary to prevent escape or enforce discipline. * * * Otherwise he has supervisory powers only to help in the reformation and rehabilitation of convicted persons on probation, parole, or suspended sentences.'

In People v. Ronald W. (1969), 24 N.Y.2d 732, 734, 302 N.Y.S.2d 260, 262, 249 N.E.2d 882, 883-884, the Court of Appeals of New York remarked:

'The clearly stated objectives of education and rehabilitation which are always paramount in the relationship between the probation officer and the probationer * * * are totally foreign to the elements the Supreme Court addressed itself to in Miranda.

'* * *

'It is true that a probation officer is a 'peace officer' * * * but, certainly, he is not a 'law enforcement' officer within the spirit or meaning of Miranda v. Arizona * * *.'

Gilmore v. People (1970), 171 Colo. 358, 467 P.2d 828, involved statements made by a defendant to his federal probation officer. The defendant had been given the Miranda warnings by the police and he denied everything they charged him with. He then admitted the offense to the probation officer. The trial court held that the defendant was adequatly warned of his Miranda rights by the police and that any statements he made subsequently to anyone else were made voluntarily.

In Nettles v. State (Fla.App.1971), 248 So.2d 259, the court held admissible in evidence a defendant's admission to his probation officer who failed to give him the Miranda warnings. As in the case now before us, ...