State v. Austin
| Decision Date | 07 October 1976 |
| Citation | 52 Ohio App.2d 59,368 N.E.2d 59 |
| Parties | , 6 O.O.3d 43 The STATE of Ohio, Appellee, v. AUSTIN, Appellant. * |
| Court | Ohio Court of Appeals |
Syllabus by the Court
1. The failure of police officers to give Miranda warnings to one subsequently accused prior to obtaining his consent to conduct a search of his home does not alone invalidate the seizure of evidence used against him, even where he is effectively in custody.
2. In a criminal case, an inference of guilty intent may be drawn from the presentation of direct evidence that an accused concealed the body of one he had killed.
George C. Smith, Pros. Atty., and Alan C. Travis, Columbus, for appellee.
James M. McCord and Taylor & Ludwig, Columbus, for appellant.
Appellant was indicted for the aggravated murder of his wife, Michele J. Austin, on March 1, 1975. To this charge he entered a plea of not guilty. A trial by jury was waived, and, after trial before the court, appellant was found guilty of the lesser included charge of murder and sentenced according to law.
From the judgment of the trial court, appellant has filed a timely notice of appeal, setting forth the following assignments of error:
The body of Michele J. Austin, the wife of appellant, was found floating on the water in Hoover Reservoir on July 5, 1975. It was wrapped in a flowered bedsheet and a blanket secured by tire rims attached by coat-hangers and a log chain. The body was immediately sent to Cincinnati where Dr. Paul Jolly, the chief deputy coroner of Hamilton County, an expert in pathology, performed an autopsy. He found that the body was very badly decomposed, having been in the water for a period of more than four months. The body weighed seventy-six pounds at the time of the autopsy. Other testimony showed that the victim weighed about one hundred and sixty pounds on March 1, 1975, at the time of the death. Because the body was badly decomposed, Dr. Jolly was unable to establish with absolute certainty the cause of death, but stated that it was probably drowning. When asked about the use of the term probability as opposed to reasonable medical certainty, he stated that he considered certainty to be 99.9 percent and probability a bit below that. He found no evidence of trauma as much of the flesh had decomposed, but did not completely rule out the possibility of death by asphyxiation. It was stipulated that through dental charts experts would testify that the body was that of Michele J. Austin.
Following the discovery of the body, on July 5, 1975, the police department conducted an investigation. Conversations with relatives of the victim and a neighbor indicated that appellant and his wife were having domestic problems and that appellant had stated that his wife had left home after an argument, leaving her baby behind. The investigation disclosed that appellant had been very reluctant about filing a missing person report. A neighbor identified the flowered bedsheet wrapped around the victim as being similar to that owned by appellant and his wife.
Armed with this information and with the finger of suspicion very strongly pointed towards appellant, police officers came to his trailer on the afternoon of July 11, 1975, at about 2:25 p.m. They did not advise him that his wife's body had been found, but asked him if he would show them his wife's clothing, and in particular, bed clothing from the doublebed used prior to the time that his wife had left. Bed clothing of a flowered pattern that appeared to be the same as that wrapped around the victim was found in a drawer. The police officers then asked appellant to go with them to police headquarters. Inside police headquarters, at approximately 3:07 p.m., appellant was asked if he would sign a consent to search form. Appellant signed that form and police officers were immediately dispatched to the trailer to obtain the flowered bedding. At 3:15 p.m., police officers fully explained the Miranda rights to appellant, who voluntarily signed a waiver form. Before questioning appellant, the officers told him that they had found his wife's body and that they believed he had killed her. Defendant initially denied any involvement in the death several times, but shortly thereafter gave the police officers the following statement: (Reproduced verbatim) "I had jest got Jr asleep and she got hiper over me working nights. I trid to get her to cem down I couldn't so I went in to the bed room and turned on the T.V. She came in and started, I trided to get her to set down and be sinabule and not to wake Jr. But she disagree so I trided to held her so I could talk to her need thing I know blood was comeing from her mouth I stoped and look at her, I didn't know what to do I just look at her for I don't know how long.
During the course of the trial, appellant's written and oral statements to the police officers were admitted into evidence after the previous testimony had been admitted, over objection of appellant's attorney who contended that the corpus delicti had not been established, and that the statement was not admissible as not being voluntary. A pretrial motion to suppress the statement had been filed, heard and overruled.
After the prosecution rested, the defendant took the stand and basically admitted his statement claiming that his wife's death was accidental when she became hysterical during an argument, and he was attempting to restrain her. The defendant admitted that he did not call the emergency squad, police or anyone else, but contended that he became panicky and subsequently disposed of the body in Hoover Reservoir.
The first two assignments of error will be discussed together as they are interrelated.
Appellant contends that he was effectively under arrest and in custody at the time of the officers' initial visit to his trailer, because one of the officers stated that appellant would have been arrested on the spot had he not cooperated. However, what transpired at the trailer was merely a request to see some of the victim's possessions, i. e., a consent to search. No statements were obtained from the appellant and the only answer that could be considered incriminating was the affirmative response to a question asking if any of the bed clothing from the doublebed was still in the house. The bed clothing was indicated to the officers as being in a drawer and it was observed by them.
Appellant argues that even this limited questioning without Miranda warnings violated the self-incrimination rights of appellant (pointing to the case of Orozco v. Texas (1969), 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311), thus rendering inadmissible both the answer and testimony concerning the bed clothing observed therein and obtained thereafter by the use of a search warrant.
There was no requirement that a Miranda warning be given at the trailer, as no incriminating statements were sought or obtained. The only question asked was in regard to the location of the bed clothing in the trailer. Any impropriety would thus pertain to the consent to search rather than self-incrimination through statements.
The issue then is whether the officers were required to inform appellant that he had a right to refuse to consent to the search of the trailer in order to demonstrate that the consent was voluntary and not the result of duress or coercion, expressed or implied. The United States Supreme Court has made clear that no such warning is required if the subject of the search is not in custody. See Schneckloth Conservation Center v. Bustamonte (1973), 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854. However, it would appear that appellant was effectively in custody at the time the officers visited his trailer as their testimony makes it clear that he would not have been permitted to depart their custody at that time, even though he was not told that he was under arrest. No issue has been presented as to whether the search was proper as being incident to a valid arrest.
The weight of authority holds that prior Miranda warnings are not required to validate consent searches, even when the consent is obtained after the defendant is effectively in custody. See United States v. Garcia (C.A. 5 1974), 496 F.2d 670, 673, where the court stated as follows:
As the court pointed out in Garcia, a search...
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