State v. Barker

• Decision Date: 22 February 1978
• Docket Number: No. 77-296,77-296
• Citation: 53 Ohio St.2d 135,7 O.O.3d 213,372 N.E.2d 1324
• Parties: , 7 O.O.3d 213 The STATE of Ohio, Appellee, v. BARKER, Appellant.
• Court: Ohio Supreme Court

Page 135

53 Ohio St.2d 135

372 N.E.2d 1324, 7 O.O.3d 213

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

No. 77-296.

Supreme Court of Ohio.

Feb. 22, 1978.

Syllabus by the Court

1. The existence of an arrest is dependent not upon the fact that a suspect who voluntarily comes in for questioning concerning possible involvement in a murder is immediately given the Miranda warnings, nor upon the period of the questioning, but upon the existence of four requisite elements: (1) An intent to arrest, (2) under real or pretended authority, (3) accompanied by an actual or constructive seizure or detention of the person, and (4) which is so understood by the person arrested.

2. In deciding whether a defendant's confession is involuntarily induced, the court should consider the totality of the circumstances, including the age, mentality, and prior criminal experience of the accused; the length, intensity and frequency of interrogation; the existence of physical deprivation or mistreatment; and the existence of threat or inducement. (Second paragraph of the syllabus in State v. Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051, approved and followed.)

3. Voluntary consent to the taking of a hair sample, from the subject of a noncustodial search, is determined from the totality of the circumstances, and the fact that the subject was not informed of his right to refuse is to be considered as a factor but does not in and of itself vitiate voluntary consent.

Karen Miller (decedent) was employed by a photographic processing company, called Foto Fair. On the evening of October 24, 1974, the decedent telephoned her mother and asked her to come to the Foto Fair booth to accompany her home. The decedent had been frightened by a dark-haired man who had been there that evening. Mrs. Miller went to the booth, and she and her daughter left for home at approximately 8:30 p.m. Upon their arrival, the decedent was hailed by a voice from the street. Inquiring as to the identity and receiving a reply ending in "y" or "ie," according to Mrs. Miller, the decedent proceeded to the street, and Mrs. Miller entered the house. Shortly thereafter, Mrs. Miller noticed a car in the street and signaled to the decedent to come in. Mrs. Miller next heard a door slam and, looking out again, saw the car was gone.

Neighbors of the Millers, walking home, heard the car door slam and then saw a car traveling in their direction at a high speed without its headlights turned on.

After unsuccessfully attempting to locate the decedent, Mrs. Miller reported to the police, at approximately 10:00 p.m., that her daughter was missing. Shortly thereafter, the decedent's body was found on a bridge on Kemp Road in Beavercreek Township, Greene County, with a bullet hole through the head and neck and exhibiting evidence suggestive of a sexual assault.

Subsequent to his confession to the Greene County sheriff's department, on January 3, 1975, the grand jury returned an indictment of aggravated murder with specifications, charging Kenneth Ray Barker (appellant) with purposely causing the death of Karen Miller "while committing kidnapping or rape or while fleeing immediately after committing kidnapping or rape."

Appellant, after the rejection of his motion for a change of venue and motion for suppression of evidence, was brought to trial by a jury on March 31, 1975. On May 8, 1975, the jury returned a verdict of guilty of aggravated murder with all three specifications.

Thereafter and in accordance with R.C. 2929.03, a sentencing hearing was held. The trial judge, not finding any mitigating circumstances, imposed the required death penalty.

Appellant's motion for a new trial was considered and overruled at a hearing held on August 7, 1975.

Appellant then appealed his conviction and sentence to the Court of Appeals, which affirmed on January 13, 1977.

This cause is presently before the court as a matter of right.

R. Michael DeWine, Pros. Atty., Xenia, and William F. Schenck, Jr., Columbus, for appellee.

Brandabur, Campbell, Finlay, Johnson, McCormick & Weckstein Co., L. P. A., J. Timothy Campbell and Larry B. Morris, Xenia, for appellant.

LOCHER, Justice.

I.

Appellant, in his first four propositions of law, contends that his confession and the fruits obtained therefrom were improperly admitted in evidence. This contention is premised upon several asserted reasons. First, appellant alleges that the police failed to properly advise him of his constitutional rights, pursuant to the mandate of Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, by not explaining the exact meaning of his rights. Secondly, appellant claims he was illegally arrested without probable cause at 10:30 a.m. on January 3, 1975. Thirdly, the entirety of the circumstances reveals the involuntary nature of appellant's confession.

Resolution of this contention necessitates examining the events leading to appellant's confession. In 1974, appellant was twice contacted by the police concerning the murder of Karen Miller. Then, on January 2, 1975, the Chief of Detectives of the Greene County sheriff's department telephoned appellant to request that he come in the following day for an interview. Appellant indicated that he would be present. However, at approximately 10:00 a.m., appellant phoned the sheriff's department, stating that his car was disabled, leaving him without a viable means of transportation. An arrangement was concluded whereby a sheriff's car was sent, pursuant to appellant's instruction, to a Sohio station in Dayton to transport him to the Greene County sheriff's department.

Upon appellant's arrival, Detective Sergeant Norman Crosswhite read the Miranda warnings to appellant and further handed him a pre-interview form, which reiterated the warnings, to read and then sign before questioning the appellant. This form was signed by the appellant. Detective Crosswhite then spoke with the appellant until a cessation at 11:30 a.m. for lunch. Thereafter, they journeyed to London, Ohio, for the administration of a polygraph examination. Returning to the sheriff's department, appellant had a 15 or 20 minute conversation with the sheriff, at approximately 2:00 p.m. Afterwards, Detective Crosswhite again conversed with appellant and informed him of the existence of evidence implicating appellant in the murder of Karen Miller. This discussion culminated in appellant's confessing to the murder of Karen Miller, at approximately 5:30 p.m.

Only after this admission did appellant state for the first time: "I guess I can't go now." Detective Crosswhite replied: "No, sir, you can't." Appellant was then incarcerated in the county jail. A stenographic statement of appellant's reiterated confession was taken later that evening. A second statement was transcribed the following day, wherein appellant reaffirmed his prior statement and indicated the location of the murder weapon.

Appellant's assertion that he was arrested on the morning of the third, not after the confession as contended by appellee and thus without probable cause, is not premised upon any statements prior to the confession that appellant was under arrest or not free to leave. Instead, appellant asserts that the 71/2 hours of interrogation and the receipt of his constitutional rights immediately upon arrival at the sheriff's office evince the fact of his arrest at 10:30 a.m. We are unable to concur with appellant in such a conclusion under the instant facts.

The word "arrest" is derived from the French "arreter," meaning to stop or stay, as signifies a restraint of a person. Alter v. Paul (1955), 101 Ohio App. 139, 141, 135 N.E.2d 73. An arrest occurs when the following four requisite elements are involved: (1) An intent to arrest, (2) under a real or pretended authority, (3) accompanied by an actual or constructive seizure or detention of the person, and (4) which is so understood by the person arrested. State v. Terry (1966), 5 Ohio App.2d 122, 128, 214 N.E.2d 114, citing State v. Milam (1959), 108 Ohio App. 254, 268, 156 N.E.2d 840; see, also, 5 American Jurisprudence 2d 695, Arrest, Section 1, and 6A Corpus Juris Secundum 99, Arrest, Section 43.

In the instant cause, appellant voluntarily came to the sheriff's office. At no time prior to appellant's confession did any officer convey an intention to arrest the appellant. Furthermore, there was testimony which indicated that appellant was free to leave until his confession. In fact, appellant, himself, before his confession, apparently never thought he was under arrest as exemplified by his exclaiming after his confession: "I guess, I can't go now." Plainly, these facts do not satisfy the four requisites. Moreover, the facts fail to equate with the "common" definition of arrest (see United States v. Bonanno (S.D.N.Y., 1960), 180 F.Supp. 71, 78).

Appellant next assails the admission of his confession and the fruits thereof, alleging the inadequacy of the Miranda warnings given to him. A similar contention has previously been addressed by this court. ¹ In State v. Edwards (1976), 49 Ohio St.2d 31, 39, 358 N.E.2d 1051, this court stated:

"Miranda does not require a police officer to ask the defendant whether he wants an attorney. He need only inform the accused, as was done here, that the accused has a right to a retained or appointed attorney. Moreover, the defendant was 21 years old, a high school graduate, and able to understand the English language. In being asked whether he understood his rights, he responded affirmatively. He never asked for an attorney."

As has been previously stated herein, appellant, upon his arrival at the sheriff's office, was read the Miranda warnings. He was then handed a form to read, which reiterated the warnings, and requested to sign the form. The signed form was presented at the suppression hearing. Furthermore, the Court of Appeals stated that appellant, during this procedure, specifically stated that he did not want an...