State v. Gallagher, 73-623

• Decision Date: 19 May 1976
• Docket Number: No. 73-623,73-623
• Citation: 46 Ohio St.2d 225,348 N.E.2d 336
• Parties: , 75 O.O.2d 280 The STATE of Ohio, Appellee, v. GALLAGHER, Appellant.
• Court: Ohio Supreme Court

Page 225

46 Ohio St.2d 225

348 N.E.2d 336, 75 O.O.2d 280

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

No. 73-623.

Supreme Court of Ohio.

May 19, 1976.

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

Jack T. Schwarz, Dayton, for appellant.

PER CURIAM.

Following our judgment in this case, appellee appealed to the Supreme Court of the United States. That court granted certiorari (420 U.S. 1003, 95 S.Ct. 1445, 43 L.Ed.2d 761), and, under a mandate of April 5, 1976, vacated our judgment and remanded the cause to this court 'to permit * * * (this) court to explicate whether or not * * * (our) judgment relies on federal law.' -- U.S. --, 96 S.Ct. 1438, 47 L.Ed.2d 722, 44 L.W. 4475, 4476.

Preceding and explanatory of the quoted mandate are the following statements of the majority of the court:

'From the briefs and oral argument, we are unable to determine whether the Ohio Supreme Court rested its decision upon the Fifth and Fourteenth Amendments to the Constitution of the United States, or Section 10, Article I of the Ohio Constitution, or both. In its full opinion, the Ohio court cited with approval an excerpt from the opinion of the Court of Appeals for the Fifth Circuit in United States v. Deaton, 468 F.2d 541 (1972), a case which, in the view of the state court presented the precise question then before it. We are unsure whether the Ohio court made reference to Deaton merely to lend support to its view that a parolee is under heavy pressure to cooperate with his parole officer or whether the court intended to demonstrate its reliance on a federal constitutional ground. Indeed, we cannot be certain that the Ohio court did not construe its constitutional provision to be identical to that contained in the Fifth Amendment and thus render judgment simultaneously under both state and federal law.

'* * * The italicized headnote ¹ which appears in the instant syllabus can be read as a holding based only on points of criminal law and the law of evidence; it contains nothing to indicate that a point of federal constitutional law is decided. * * * (W)e decline to speculate from the choice of words used in the syllabus and the authorities cited by the author of the opinion as to which constitutional provision formed the basis for the judgment of the state court * * *.' (Emphasis sic.)

The dissenting opinion of Justice Potter Stewart, in which Justices Marshall and Blackmun concur, states:

'It is clear to me that the judgment of the Supreme Court of Ohio rests upon both the Constitution of the State of Ohio and the Constitution of the United States.'

Pursuant to the mandate hereinabove quoted we have reexamined our opinion in the subject case and certify as follows:

In the opinion in State v. Gallagher, supra (38 Ohio St.2d 291, 313 N.E.2d 396), we rejected decisions of other state courts on the admissibility of inculpatory statements made to parole officers because the focus of inquiry in those cases was the applicability vel non of the Miranda case. The Gallagher facts required an analysis against the backdrop of the privileges against self-incrimination conferred by Section 10, Article I of the Ohio Constitution ² and by the Fifth and Fourteenth Amendments to the United States Constitution. Thus, the narrow, factual question presented, at page 295, 313 N.E.2d at page 399, was '* * * whether appellant was compelled to produce evidence against himself or whether utterances to his parole officer were voluntarily given.'

We were impressed by the unique position of power held by parole officers in this state. ³ And we concurred in the observations of a federal court, that '(a) parolee is under heavy psychological pressure to answer inquiries made by his parole officer, perhaps even greater than when the interrogation is by an enforcement officer,' by agreeing 'that a parolee is under heavy pressure to cooperate with his parole officer * * * (who, allegedly,) had the power to recommend the return to prison of a parolee under his charge, and that appellant might have assumed that his utterances were in some way confidential.' State v. Gallagher, supra (38 Ohio St.2d 291, 313 N.E.2d 396), at 296-297, 313 N.E.2d at 400.

Accordingly, in reaching our initial decision herein we relied upon the Fifth and Fourteenth Amendments to the United States Consitution and Section 10, Article I of the Ohio Constitution. Although it is our view that we should reach the same conclusion under the Fourteenth Amendment, we were (and we are) in any event independently constrained to the result we reached by the Ohio Constitution. We so conclude by our construction and application of Ohio law. Regardless of whether there is or is not compulsion to the same end by the federal Constitution (see Dept. of Mental Hygiene v. Kirchner (1965), 62 Cal.2d 586, 43 Cal.Rptr. 329, 400 P.2d 321, 322), we are mindful of the admonition of the Supreme Court of Minnesota that:

'We should not guess as to what the United States Supreme Court may do with its prior decisions, nor are we able to predict the bases upon which such supposed change of opinion are to be founded. Until that court overrules its former well-considered opinions there is no lack of uniformity between our interpretation of our Constitution and of that court's interpretation of the Fourteenth Amendment.' National Tea Co. v. State (1940), 208 Minn. 607, 608, 294 N.W. 230, 231.

Inasmuch as we did not act solely by compulsion of the Fourteenth Amendment, either directly or in construing or in applying state law, we reinstate and reiterate our former decision as filed June 26, 1974, and issue the remittitur forthwith.

Judgment accordingly.

C. WILLIAM O'NEILL, C. J., and HERBERT, STERN, CELEBREZZE, WILLIAM B. BROWN and PAUL W. BROWN, JJ., concur.

J. J. P. CORRIGAN, Justice (dissenting).

In the trial court, this defendant waived a jury, was tried by the court, and convicted of armed robbery. The person who was robbed the cashier in the store, positively identified defendant as one of the two robbers.

On June 22, 1972, when defendant was under arrest for this robbery, he was fully advised of his rights to remain silent, to have an attorney present and that anything he said could be used against him, under the Miranda case, by two detectives. He signed a waiver of those rights. He was on parole from the penitentiary for another crime. He was certainly familiar with the Miranda warnings. His parole officer visited him in the jail on two occasions in the next few days, during the second of...