State v. Arrington
| Decision Date | 07 July 1965 |
| Docket Number | No. 39108,39108 |
| Parties | , 32 O.O.2d 46 The STATE of Ohio, Appellee, v. ARRINGTON, Appellant. * |
| Court | Ohio Supreme Court |
John T. Corrigan, Pros. Atty., Dennis J. McGuire and Charles W. Fleming, Cleveland, for appellee.
Jerry Milano, Cleveland, for appellant.
This case is before this court on appellant's motion for rehearing which was treated as a motion for reconsideration and allowed. As appellant states, the affirmance of his conviction was based on the case of State v. McLeod, 1 Ohio St.2d 60, 203 N.E.2d 349, and subsequently the United States Supreme Court reversed the McLeod case. 85 S.Ct. 1556.
The opinion of the Supreme Court of the United States reversing McLeod furnishes no guidelines to this court as to what elements in the McLeod case caused its reversal. The reversing opinion merely states that the judgment is reversed and cites Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246. Speculating as we must, there appear two possible grounds upon which the reversal could have been based even though the confession involved was voluntary. One, that such confession was made after indictment at a time petitioner was not represented by counsel, or, two, that McLeod was not advised of his right to remain silent and that anything he said could be used against him.
The facts in the instant case bear no resemblance to either McLeod or Massiah. The record here shows that both statements made by appellant were given voluntarily in narrative form at interviews instigated by him and at his own request that these were not interrogatory proceedings, and that it both interviews he was informed that the statements could be used against him. At these interviews the fact that he was represented by counsel was discussed by the prosecuting attorney with appellant and apparently appellant did not want his counsel present. The record shows that such statements were motivated by the desire of appellant to 'get even' with one Dick Stewart who caused his apprehension in Alabama.
The trial court, after a full hearing on the question of the suppression of these statements, found that petitioner was not only fully informed of his rights but also that he was well aware of them and intelligently waived them.
Thus, in the present case we have a situation where an accused although represented by counsel voluntarily and at his own request appeared before the prosecuting attorney without his counsel and only after a discussion of the fact that he was represented by counsel and only after he was told that anything he said could be used against him was he allowed to make a voluntary statement.
Our former judgment is adhered to.
Former judgment adhered to.
The court, in its original opinion in this case (2 Ohio St.2d 172, 207 N.E.2d 557), relied entirely upon the authority of State v. McLeod (1965), in which I dissented, I Ohio St.2d 60, 203 N.E.2d 349, reversed by the Supreme Court of the United States on May 24, 1965, 85 S.Ct. 1556.
In its opinion on motion for reconsideration, the court states that the facts in this case 'bear no resemblance to either McLeod or Massiah.' This being the case, the court should not originally have relied upon McLeod, supra.
It requires no speculation on the part of this court to determine the basis for the reversal by the United States Supreme Court of State v. McLeod, supra. The defendant in that case was neither granted the right to confer with counsel, nor was he informed of his right to counsel or his right to remain silent. Hence, any statements made by him under those circumstances could not be used against him without prejudice to his constitutional rights. The court, in McLeod, supra, unduly limited the application of both Massiah v. United States (1964), 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 and Escobedo v. State of Illinois (1964), 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977.
It is not the duty of defendant to request counsel. It is the duty of the officials attempting to obtain a confession from him to inform him of his rights, and, if he so desires, to give him the opportunity to consult with counsel and to have counsel present at the...
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...basis for the decision of the Supreme Court in the second McLeod case was set forth in the concurring opinion in State v. Arrington, 3 Ohio St.2d 61, 209 N.E.2d 207 (1965), cert. denied, 383 U.S. 906, 86 S.Ct. 887, 15 L.Ed.2d 662 (1966), where Judge O'Neill 'It requires no speculation on th......
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