State v. Gallagher, 73-623

• Decision Date: 26 June 1974
• Docket Number: No. 73-623,73-623
• Citation: 38 Ohio St.2d 291,313 N.E.2d 396
• Parties: , 67 O.O.2d 354 The STATE of Ohio, Appellee, v. GALLAGHER, Appellant.
• Court: Ohio Supreme Court

Page 291

38 Ohio St.2d 291

313 N.E.2d 396, 67 O.O.2d 354

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

No. 73-623.

Supreme Court of Ohio.

June 26, 1974.

Syllabus by the Court

Testimony as to utterances made by an accused to his parole officer is inadmissible at trial where the utterances were in response to questions by the parole officer, and, prior to the questioning, the parole officer failed to advise the accused of his right to remain silent, of his right to be provided with counsel prior to questioning, and warn him that any utterance may be used as evidence against him.

On May 27, 1972, an armed robbery occurred at a 7-11 store, located in Dayton, Ohio.

Terry L. Gallagher, appellant herein, was charged with the robbery, and waived his right to a jury trial.

The store's cashier described the robbery as follows: A tall man (not the defendant) approached the check-out counter, ordered a pack of cigarettes, requested change for a ten dollar bill, and then brandished a pistol and instructed the cashier to put all the money into a paper sack. At the time, there were some children in the store at a candy rack, a repairman working on an ice machine, who apparently never noticed that a robbery was taking place, and a man later identified as Gallagher.

Gallagher stood an arm's length from the gunman; but 'never said a word to' the cashier, never exhibited a gun, never said a word to or made gestures at the gumman, nor manifested in any way his participation in the crime. However, when the gunman left the store with the money Gallagher and the gunman walked out of the store and out of vies 'side by side.' ¹

The record shows further that two women entered the store at the time the cashier was filling the bag with money. At trial, the women corroborated the cashier's account of the robbery, from the time they entered the store until Gallagher and the gunman left the store.

The women were unable to identify Gallagher, but the cashier had previously identified Gallagher and the gunman from police photographs, and made a positive identification of Gallagher at trial.

The court granted a hearing on a motion by the defense to determine the admissibility of utterances made by Gallagher to police officers in the following situation: A day after his arrest, Gallagher was taken to a police interview room where he signed a 'rights waiver.' ² In the room with him were Detective Wright, from the sheriff's office; Detective Walsh, from the Dayton Police Department; and Jerry Helson, an adult parole officer.

Wright testified to the following: That a Richard Sorrell, who had already made a 'statement where he admitted his implication' in the armed robbery of the 7-11 store, was brought into the interview room, at Helson's suggestion, 'to either refute or corroborate what was said at that point (by Gallagher);' that Gallagher was told that Sorrell had given a statement to the police, and that if both Sorrell and Gallagher 'copped out' on one robbery charge then other robbery charges would be dropped; that Sorrell and Gallagher were allowed to talk privately for a half hour; that Helson and Gallagher then talked privately for a half hour; and that Wright advised Gallagher that he would not be charged with other robberies if he 'copped out' on this one.

Walsh testified to the following: That during the interview, Walsh 'informed Mr. Gallagher that Sorrell had implicated him (Gallagher) on some of the robberies Sorrell was charged with * * * this one included,' and that Gallagher then 'indicated a willingness to tell us (the police) about this particular robbery with no other charges and I (Walsh) guaranteed him I would not file any additional charges.'

The court granted the motion to suppress, reasoning that 'this defendant when giving this statement did act or operate under promises of leniency, and, therefore, the court feels that such action, which we feel could have been avoided by the officers in question, constitutes an involuntary statement and the court, therefore, will decline to receive it.'

The next witness for the state was Bill Sykes, who identified himself as Gallagher's parole officer. A motion to suppress this testimony was overruled, and Sykes testified that he visited Gallagher in jail four days after Gallagher's interview with the police officers. At no time did Sykes advise Gallagher of his right to remain silent; that any utterances to Sykes would be used as evidence in court; or of any other Miranda ³ right. However, during this visit, Sykes asked Gallagher to relate 'the circumstances surrounding the arrest.' Gallagher's response to Sykes was that 'he didn't want to make any statement in regard to the circumstances surrounding the arrest.'

Sykes left, but returned seven days later to Gallagher's cell.

To justify his visits to Gallagher's cell, Sykes explained that it was part of his job to try to get some type of statement from a parolee under his charge who was a criminal suspect.

During the second visit, Sykes renewed his request for information from Gallagher, and Gallagher complied by admitting that he had participated in the robbery.

Counsel for appellant objected to the admissibility of Sykes' testimony, and moved that it be stricken. The motion was overruled.

The court entered judgment on its verdict that appellant was guilty of armed robbery.

Upon appeal, the Court of Appeals, in a reported opinion (State v. Gallagher (1973), 36 Ohio App.2d 29, 301 N.E.2d 888), affirmed the judgment of the Court of Common Pleas.

The cause is now before this court pursuant to the allowance of a motion for leave to appeal.

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

Jack T. Schwarz, Dayton, for appellant.

WILLIAM B. BROWN, Justice.

The question presented is whether testimony, concerning certain statements made by appellant to his parole officer about his involvement in a crime, was received at trial in violation of appellant's privilege against self-incrimination, as guaranteed by Section 10, Article I of the Ohio Constitution, and the Fifth Amendment to the United States Constitution.

The opinion of the Court of Appeals and the brief of appellee cite cases from other jurisdictions which have considered this question. Of the cases cited, three courts held the testimony of the parole officer inadmissible because the accused had not been given Miranda warnings at any time prior to questioning by the parole officer ⁴; two courts held the testimony proper because a parole or probation officer is not a 'law enforcement officer' as contemplated by Miranda and, therefore, the accused was not entitled to Miranda warnings ⁵; in Nettles v. State (Fla.App.1971), 248 So.2d 259, the court held a probation officer's testimony admissible, even though the officer had failed to advise the accused of his rights, because the accused, by accepting probation, had supposedly effectuated a continuous waiver of the right to be advised of his Miranda rights; and in the last case cited, Gilmore v. People (1970), 171 Colo. 358, 467 P.2d 828, the court held a probation officer's testimony admissible because the statements made to the officer had been 'volunteered' within the meaning of Miranda, wherein 384 U.S. 436, at page 478, 86 S.Ct. 1602, at page 1630, the United States Supreme Court stated: 'Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.'

In our opinion, the foregoing cases are not persuasive when applied to...