State v. Butler

• Decision Date: 09 July 1969
• Docket Number: No. 68-623,68-623
• Parties: , 48 O.O.2d 77 The STATE of Ohio, Appellee, v. BUTLER, Appellant.
• Court: Ohio Supreme Court

Page 55

19 Ohio St.2d 55

249 N.E.2d 818, 48 O.O.2d 77

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

No. 68-623.

Supreme Court of Ohio.

July 9, 1969.

Syllabus by the Court

1. An accused is not entitled to a discharge for delay in bringing him to trial unless it appears that he resisted postponement, demanded a trial, or made some effort to procure a speedier trial than the state accorded him.

2. The protection against compulsory self-incrimination does not operate to exclude the prosecution's use of voluntary statements of an accused, made to police without Miranda warnings, for the purpose only of impeaching his credibility on cross-examination.

The offense for which appellant was indicted, tried and convicted occurred on August 30, 1964. He struck Annie Ruth Sullivan with a jack handle, causing an injury which resulted in loss of sight of her left eye. Fifteen months later, on November 19, 1965, appellant was apprehended and arrested by the Cincinnati police. While in custody on November 20, 1965, he was interrogated by policy officers. Prior to the questioning, the police gave no explanation to appellant as to his rights to remain silent and have an attorney present. The interrogation was recorded and reduced to writing. Over objection by appellant's counsel, these questions and answers were repeated by the prosecutor at trial to impeach statements made by appellant during cross-examination.

Appellant appeared before the Municipal Court of Hamilton County on November 22, 1965. Probable cause was found and appellant was bound over to the Hamilton County grand jury. Bond was set at $500, which appellant posted.

For some unexplained error on the part of the clerk of court, the transcript of appellant's case was not transmitted to the Court of Common Pleas until 22 months later, on September 13, 1967. During this time, appellant remained free on bond and never requested trial or communicated with the court in any way.

On September 22, 1967, the grand jury returned an indictment for the offense of 'maiming.'

On September 25, 1967, appellant was arraigned and pleaded not guilty, after which the court appointed counsel.

A motion to dismiss the indictment for denial of a 'speedy trial' was filed on October 30, 1967, and later overruled.

Trial was set for February 28, 1968, and continued to May 15, 1968, at appellant's request. A jury was waived and appellant was found guilty by the court of the lesser included offense of aggravated assault. The Court of Appeals affirmed the judgment of conviction.

Melvin G. Rueger, Pros. Atty., and Robert K. Sachs, Cincinnati, for appellee.

Paul H. Tobias, Cincinnati, for appellant.

SCHNEIDER, Judge.

Appellant raises two significant constitutional questions in this appeal: First, whether a 22-month delay between preliminary hearing and indictment denies an accused his right to a 'speedy trial' under the Ohio and United States constitutions. Section, whether in cross-examination of a defendant the prosecutor may use prior inconsistent statements of the defendant, made to police without Miranda warnings, in order to impeach his credibility?

The law of Ohio is that the right to a speedy trial is not self-executing. Affirmative action on the part of an accused in the nature of a demand to be tried is necessary to invoke the constitutional protection. Partsch v. Haskins (1963), 175 Ohio St. 139, 191 N.E.2d 922; Crider v. Maxwell (1963), 174 Ohio St. 190, 187 N.E.2d 875; State v. Cunningham (1960), 171 Ohio St. 54, 167 N.E.2d 897; Ex parte McGehan (1872), 22 Ohio St. 442.

The majority of jurisdictions are in accord with Ohio:

'It has been held generally that an accused is not entitled to a discharge for delay in bringing him to trial unless it appears that he resisted postponement, demanded a trial, or made some effort to procure a speedier trial than the state accorded him. * * *' Annotation, 57 A.L.R.2d 302, 326.

We find no evidence in the record that appellant demanded a trial or inquired as to the status of his case. He was not incarcerated but was free on bond during the entire 22-month delay. This belies indigency, which is not urged. During this time he could have employed counsel, contacted witnesses and prepared to prove his innocence. He suffered none of the incapacities or disadvantages of an accused who must await trial delays while incarcerated. It is claimed that he suffered the anxiety and suspicion of one who must bear an untried accusation of crime. Cf. People v. Prosser (1955), 309 N.Y. 353, 130 N.E.2d 891, 57 A.L.R.2d 295. However, this posture is defeated by lack of any action on his part to ascertain the status of the charge against him.

Appellant's right to a speedy trial under the Sixth and Fourteenth Amendments to the United States Constitution is no broader than under the Ohio Constitution. The United States Supreme Court extended the Sixth Amendment guarantee to state trials in Kloper v. North Carolina (1967), 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1. That reasoning supports our position here. In Klopfer, the accused affirmatively demanded trial. He filed a motion with the court to ascertain when the state intended to bring him to trial, and demanded that the charge pending against him be permanently concluded. The actions of appellant in this case do not even remotely resemble those of Klopfer. Accordingly, we find no violation of the appellant's Sixth and Fourteenth Amendment right to speedy trial.

We pause to stress, however, that the reason for delay in trial here was a clerical error. If the prosecutor had used the delay, as in Klopfer v. North Carolina, supra, to indefinitely postpone prosecution and place the accused under curtailment of his liberty and under fear of revived prosecution we would not hesitate to condemn the procedure. The delay here is conceded to have been caused by the oversight of the clerk of court and the failure of the accused to assert his right.

Appellant's second contention is that the prosecution violation violated his Fifth Amendment right against self-incrimination by using statements of his which were made to police during in-custody interrogation with no warning of his right to silence or to counsel. The questioning occurred after arrest, on November 20, 1965, which was prior to the United States Supreme Court decision in Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. It was held there that the prosecution's use of statements of an accused, made to police without prior warnings of his rights to remain silent, to counsel and appointed counsel if indigent, was a violation of the accused's Fourteenth and Fifth Amendment right against self-incrimination. In Johnson v. New Jersey (1966), 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, the court held that the rule of Miranda applied to all trials commenced after its date of announcement, June 13, 1966. The delayed trial in the instant case occurred on May 15, 1968, making Miranda applicable.

The appellant took the stand and, on cross-examination by the prosecution, he made assertions as to the facts surrounding the crime. A recorded statement appellant made to a detective after arrest was then read to him to show a prior inconsistent statement. ^* Counsel objected, but the court allowed the statement to be used as evidence to impeach the witness' credibility. Appellant contends that this use of the statements, made without cautionary warnings, violated his Fifth Amendment rights as defined by Miranda v. Arizona, supra, 384 U.S. 436, 86 S.Ct. 1602.

We cannot agree. First, the statements used by the prosecution were not offered by the state as part of its direct case against appellant, but were offered on the issue of his credibility after he had been sworn and testified in his own defense. Second, the statements used by the prosecution were voluntary, no claim to the contrary having been made.

The distinction between admissibility of wrongfully obtained evidence to prove the state's case in chief and its use to impeach the credibility of a defendant who takes the stand was expressed in Walder v. United States (1954), 347 U.S. 62, 65, 74 S.Ct. 354, 356, 98 L.Ed. 503:

'It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government's possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths. * * *'

Those words of Justice Frankfurter were uttered in regard to evidence inadmissable under the Fourth Amendment exclusionary rule. In the case of the Fifth Amendment, even greater reason exists to distinguish between statements of an accused used in the prosecution's direct case and used for impeachment in cross-examining the accused when he takes the stand. We must not lose sight of the words of the Fifth Amendment: '* * * nor shall be compelled * * * to be a witness against himself * * *.' This is a privilege accorded an accused not to be compelled to testify, nor to have any prior statements used by the prosecution to prove his guilt. We cannot translate those words into a privilege to lie with impunity once he elects to take the stand to testify. Under our ruling in State v. White (1968), 15 Ohio St.2d 146, 239 N.E.2d 65, the accused could have 'discovered' recorded statements made to the police. This is as much protection against a faulty memory as any defendant is entitled to.

We do not believe that the case of Miranda v. Arizona, supra, 384 U.S. 436, 86 S.Ct. 1602, dictates a conclusion contrary to ours. In Miranda, the court indicated that statements of a defendant used to impeach his testimony at trial may not be used unless they were taken with full warnings and effective waiver. (384 U.S., at 477, 86 S.Ct. 1602). However, we note that in all four of the convictions reversed by that decision statements of...