State v. Moritz, 79-1546

Citation63 Ohio St.2d 150,407 N.E.2d 1268,17 O.O.3d 92
Decision Date16 July 1980
Docket NumberNo. 79-1546,79-1546
Parties, 17 O.O.3d 92 The STATE of Ohio, Appellee, v. MORITZ, Appellant.
CourtUnited States State Supreme Court of Ohio

Syllabus by the Court

1. An accused's right of cross-examination secured by the confrontation clause of the Sixth Amendment is violated in a joint trial with a non-testifying codefendant by the admission of extrajudicial statements made by the codefendant inculpating the accused. (Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, followed.)

2. A violation of an accused's right to confrontation and cross-examination is not prejudicial where there is sufficient independent evidence of an accused's guilt to render improperly admitted statements harmless beyond a reasonable doubt.

Defendant-appellant, Richard Moritz, a veteran Cleveland police department sergeant, was convicted by a jury of one count of bribery, a violation of R.C. 2921.02. He was jointly tried with codefendant Emanuel Porter, a bailiff from the Cleveland Municipal Court who was also convicted of the same charge. Porter is not a party to this appeal.

The charges against the two men stemmed from a series of events that began in October 1977. On October 18, 1977, Edmond Pollard was involved in a motor vehicle-pedestrian accident, resulting in the pedestrian's fatality. Pollard was arrested by the Cleveland police on a charge of negligent vehicular homicide. At the time of his initial appearance in court, that charge was dismissed and Pollard was charged with aggravated vehicular homicide based upon evidence that he was intoxicated at the time of the accident.

Pollard's common-law wife, Rosalie Pollard, visited the Cuyahoga County Justice Center on the day of the accident and later that day contacted defendant Emanuel Porter. She had continuing contact with Porter because of the charges pending against her husband. Mrs. Pollard alleged that on October 20, 1977, Porter stated to her that cases similar to her husband's could be taken care of for "two big ones," which she took to mean $2,000.

Mrs. Pollard further testified that she communicated with Porter on a daily basis during the following week. Although not able to exactly recount these conversations, she said that their talks were "always about getting the charge dropped or reduced or things of this nature." On Thursday, October 27, 1977, she received a call at work from Porter. She testified that, "he said that the Blue Coats said for two big ones the charge could be either reduced or dropped." Mrs. Pollard responded to Porter by declaring, "for that kind of money I would have to talk to the people * * * ," to which she claimed Porter stated " * * * he would relay the message or words to that effect."

The next day Mrs. Pollard received a call from a person identifying himself as Sergeant Moritz. He indicated that he understood that she wanted to dismiss the attorney who was retained to represent her husband and offered to come to her house that evening to discuss this matter. She testified further that "(h)e said something about the two big ones * * *" in this conversation.

Following this conversation, Mrs. Pollard contacted the Federal Bureau of Investigation, which in turn, enlisted assistance of the Cleveland Police Department. As a result, on November 1, 1977, Mrs. Pollard had recorded telephone conversations with both Porter and Moritz. Then, in a controlled situation, she visited Moritz in his office at the Cleveland Police Department in the Justice Center. A microphone was concealed on her person with her cooperation. During this conversation which was being monitored by F.B.I. agents and Cleveland police officers, Mrs. Pollard gave Moritz $1,000 in $100 bills. Mrs. Pollard gave the prearranged signal, and shortly thereafter the F.B.I. and members of the Cleveland Police Department Intelligence Unit entered the office and arrested Moritz.

Appellant Moritz maintained his innocence throughout the trial, claiming that he was playing along with Mrs. Pollard in order to initiate bribery charges against her. His codefendant Porter never testified at trial. Some of the transcripts of Porter's recorded conversations, however, were offered in evidence.

Appellant appealed his conviction to the Court of Appeals which affirmed the judgment of the trial court.

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

John T. Corrigan, Pros. Atty. and Thomas J. Wagner, Cleveland, for appellee.

Tricarichi, Carnes, Kube & Weinberger, James S. Carnes and Peter H. Weinberger, Cleveland, for appellant.

PAUL W. BROWN, Justice.

Appellant raises four propositions of law. Appellant first contends that the trial court committed prejudicial error when it failed to grant a separate trial in this cause, where extrajudicial statements of a codefendant not subject to cross-examination were used against him.

Prior to trial, appellant made a motion for a separate trial under Crim.R. 14, which provides, in pertinent part, that:

"If it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants in an indictment, information, or complaint, or by such joinder for trial together of indictments, informations or complaints, the court shall order an election or separate trial of counts, grant a severance of defendants, or provide such other relief as justice requires. In ruling on a motion by a defendant for severance, the court shall order the prosecuting attorney to deliver to the court for inspection pursuant to Rule 16(B)(1)(a) any statements or confessions made by the defendants which the state intends to introduce in evidence at the trial."

Severance of the trials of the two codefendants was sought based upon the case of Bruton v. United States (1968), 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476. The holding of that United States Supreme Court decision was succinctly summarized in United States v. Fleming (C.A. 7, 1979), 594 F.2d 598, 602, certiorari denied, 442 U.S. 931, 99 S.Ct. 2863, 61 L.Ed.2d 299, where it was stated:

"In Bruton, the Supreme Court held that in a joint trial of two defendants, a confession of one co-defendant who did not testify could not be admitted into evidence even with a limiting instruction that the confession could only be used against the confessing defendant. The rationale of Bruton was that the introduction of a potentially unreliable confession of one defendant which implicates another defendant without being subject to cross-examination deprives the latter defendant of his right to confrontation guaranteed by the Sixth Amendment."

In the instant cause appellant's codefendant, Porter, exercised his privilege against self-incrimination and chose not to take the stand in his own behalf in this joint trial. Prior statements made by Porter were admissible against Porter himself, however, under the exception to the hearsay rule, which allows for admission of statements made against one's own interests. See, generally, McCormick on Evidence (2 Ed.), 628, Section 262. Appellant contends that some of these statements, like the confession made in Bruton, implicated him, without an opportunity for cross-examination of the declarant. 1 It is further contended that the trial court's limiting instruction that directed the jury to consider the evidence against each defendant separately was ineffective, like the instruction given in Bruton.

The situation presented in the instant cause is somewhat different from Bruton in that the codefendant's statements at issue were not made in a confession to the police but were instead made to a prosecution witness. The constitutional problems with confrontation and cross-examination, however, are the same. We agree with the Supreme Court of Delaware's treatment of a similar situation. That court, in analyzing the matter before it, stated:

" * * * The State's position here, as the Court understands it, simply is that the Bruton Court and others which have dealt with this problem were dealing only with the confession or statement of one defendant made to the police and that here the statement involved was heard by a non-police witness and should be treated via the older method of jury instruction. The Court cannot agree with this argument. A reading of the Court's rationale in the Bruton case, as well as the Court in People v. Aranda, Cal.Supr., 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265 (1965), lead inescapably to the conclusion that it makes no difference from whence cometh the pretrial statement of one defendant implicating another." State v. Rooks (Del.Super.1977), 382 A.2d 1380, 1382.

Appellant focuses on two evidentiary aspects of the state's case, which he claims prejudiced his defense by being admitted without presenting an opportunity for cross-examination. Objection is made to testimony elicited from Mrs. Pollard concerning conversations she had with appellant's codefendant, Porter. It was testified that Porter on two occasions stated that "blue coats" (a reference to the policemen he was dealing with) said that for "two big ones" ($2,000) the charge against Pollard could either be reduced or dropped. The second specific violation of the Bruton rule is alleged to have occurred when a tape recording of a telephone call between Mrs. Pollard and Porter was introduced in evidence. This recording does not make reference to appellant by name, but the person being discussed is referred to as the Sergeant and as the "blue coats" boss. 2

The references made in these statements are not altogether clear, but when taken in context with other testimony and the totality of the evidence, they are sufficiently specific to inculpate the appellant and, thus, bring into play the protections of Bruton. We agree with the statement that:

" * * * (T)he Bruton rule applies with equal force to all statements that tend significantly to incriminate a co-defendant, whether or not he is actually named in the...

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