State v. Carder

• Decision Date: 27 September 1965
• Parties: , 32 O.O.2d 524 The STATE of Ohio, Appellee, v. CARDER, Appellant.
• Court: Ohio Court of Appeals

Page 381

3 Ohio App.2d 381

210 N.E.2d 714, 32 O.O.2d 524

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

Court of Appeals of Ohio, Fifth District, Fairfield County.

Sept. 27, 1965.

E. Raymond Morehart, Pros. Atty., for appellee.

Richard C. Gerken and Forrest P. Moore, Logan, for appellant. McLAUGHLIN, Judge.

The defendant, a minor, a high school junior, aged 16 3/4 years, was convicted by a jury on two counts of first degree murder. Mercy was recommended. He was sentenced accordingly.

He makes the following assignments of error:

1. The court erred in admitting evidence of statements purportedly made by the defendant after his arrest and before defendant was taken before the judge of the Juvenile Court.

2. The court erred in admitting into evidence the state's exhibit 36, consisting of the defendant's fingerprints and picture and appearing on a 'criminal card,' although the defendant was a juvenile.

3. The court erred in admitting into evidence numerous pictures of the decedent's body, which, cumulated, tended to incite prejudice and inflame the minds of the jury.

4. The court erred in admitting into evidence statements purportedly made by the defendant, which statements were not voluntarily made, and the admissions of such statements were in violation of defendant's right under the 'due process clause' of the Constitution of Ohio and the Constitution of the United States.

5. The court erred in permitting the prosecuting attorney on voir dire examination of the jurors to inquire whether or not the jurors would take into consideration the defendant's age.

6. The court erred in its charge to the jury by giving incorrect instructions as to the test to be applied in considering the voluntariness of defendant's alleged confessions.

7. The court erred in admitting into evidence exhibits which were taken by unlawful search and seizure in violation of defendant's rights under the Constitution of Ohio and the Constitution of the United States.

8. The court erred in its charge to the jury by charging on the subject of 'robbery' when there was no evidence in the record that a robbery had been committed or attempted.

9. The court erred in its charge to the jury by instructing the jury that the death of the decedent could have taken place on or after April 6, 1964, and before June 10, 1964.

10. Other errors manifest on the record.

The deceased woman, Vanetta Brucker, operated a small grocery, confectionery, and dance hall just outside the city limits of Lancaster.

At about 11:00 o'clock on the evening of April 6, 1964, one Dick Mattox reported to the city police that he had just come from the Brucker store and that Vanetta Brucker had been killed. The county sheriff's office, the prosecutor, the coroner, and the Bureau of Criminal Investigation at London were promptly notified.

The body was found in a large pool of blood on the dance hall floor. She was dressed in a blouse and slacks. An ice pick was transfixed in the neck, from the right protruding out of the left side. Its handle broken in two pieces was on the floor nearby. There was a meat cleaver lying on the right shoulder with its broken handle nearby. A butcher knife was under the body.

Dick Mattox, who made the initial report to the police, told the police of a telephone conversation with the deceased about 10:00 o'clock and that she had asked him to wait because someone was at her door in a white hat. The defendant was known to wear a white helmet while riding his motorcycle. He was also known to 'hang around' the Brucker store often since it was near his high school. He thus became a prime suspect. Two deputies went to defendant's home and talked to him in the presence of his father. He told them he had worked that evening at the Tiki Bowling Lanes and came home about 11:00 p. m. The deputies left only to return shortly.

On their second visit they picked up a white helmet which they had noticed on a chair. They took it with them when they left, after assuring defendant that it would be returned.

The deputies returned a third time, and this time they asked to see his clothes and his motorcycle. The defendant showed them to the deputies. His father was there. The defendant was then taken to the sheriff's office. His father followed in his own car.

At the county jail his father was advised that they would hold defendant until morning at which time the prosecutor would question him. He was placed in a cell away from other prisoners.

Early on the morning of April 7th, the father was permitted to visit the defendant in his cell and to give him a prescribed insulin shot since he was diabetic. His employer, Richard Bird, proprietor of the bowling lanes where the defendant worked during evening hours, also visited him early that morning. Defendant gave Bird certain information which resulted in the finding of his bloody clothes in a garbage can back of the city hospital.

The defendant's brief recites events that followed:

'* * * In the morning, defendant's father had contacted an attorney, one, James Lantz, * * *. Mr. Lantz arrived about 8:30 and talked to the defendant briefly. * * * Mr. Lantz had represented Mrs. Brucker. * * * He could not represent the defendant. He did tell defendant's father that he would contact another attorney. * * *

'The defendant was taken into the back room of the sheriff's office at about 9:00 o'clock on the morning of April 7th, where he was interrogated * * *. Shortly after the interrogation started, defendant's attorney, Mr. Jackson arrived. This fact was made known to the sheriff's office, but neither the attorney, nor defendant's parents, who were present, were permitted in the room until after the interrogation was completed sometime after 12:00 o'clock noon. * * * The statements made by the defendant during the interrogation were not reduced to writing and were not signed by the defendant. The only record made consisted of notes made by one of the police officers. During the period of interrogation, defendant made at least two alleged confessions.

'The defendant was held in the county jail until April 11, 1964, at which time he was taken before the juvenile judge for the first time. * * *'

During trial, in the absence of the jury, before any testimony was offered, the trial court heard a defense motion to suppress the alleged confession as well as certain evidence (the white helmet, his bloody clothes, and the motorcycle) obtained as the result of alleged unlawful searches and seizures.

After a lengthy hearing, the trial court overruled the motion to supporess, and found as follows:

'2. The confession or statement was made voluntarily by the defendant after he had talked to his father, his employer, a lawyer sent to the jail by his father, and a juvenile officer from the Juvenile Court. His physical and mental facilities were not impaired because of the use of drugs or because of his diabetic conditions.

'3. The search and seizure insofar as the helmet is concerned was reasonable and made with the consent of the persons in control of the premises involved. Facts in possession of the police were sufficient to cause a reasonable and prudent man to believe that a felony had been committed and that this defendant committed it. The testimony does not disclose the manner in which the seizure of the motorcycle or motorbike was made. The search for and examination of said motorcycle, however, was reasonable and made with the consent of the defendant.'

'The substance of the confession or self-incriminating statement was later admitted evidence through the testimony of William Rutherford, the juvenile probation officer, who did most of the questioning. The accused told two stories and later said that the first story he had told was not true and that he would tell the true story. He then said that he went to the store about 10:00 o'clock p. m.; that Mrs. Brucker came to the door and invited him in. * * * Later she said: 'Well, I'll play some music and we'll dance.'

'* * * and he got up * * * and after they had danced a little bit, * * * she put her arm around him, and I asked him if she made any other advances toward him, and he said she took her hand and placed it down in the front of his pants, * * * and he said he called her 'filth,' and that he gave her a shove away from him and that she came back toward him and that he hit her and knocked her down and that her glasses flew off * * *, she had picked up an ice pick, and that he grabbed the ice pick from her hand and grabbed her hand and that she pulled toward him and that the ice pick ran into her neck, and he said then that she ran and got * * * a hatchet, * * * and that she grabbed it and started to strike at him with it, and he took it from her hand and that he hit her with it. * * *

'Q. Did he say how many times he struck her with the meat cleaver? A. * * * more than once. He had hit her on several occasions * * *.

'* * * and he got ahold of the body and drug it toward the door and that one of her shoes came off, * * * he took her rings off and went to the cash register and took out some money. * * * look like a robbery * * * and put them in a paper sack * * * and left by the back door, and got on his motorbike * * *.'

At the trial the accused testified in his own behalf and told a story different from either story which he had told the officers.

We attention the assignments of error in order. In assignments of error Nos. 1 and 2, it is claimed that certain procedural requirements of Chapter 2151, Revised Code, were not followed.

Violation of Section 2151.25 is claimed since the defendant was not taken directly before the Juvenile Court, upon arrest. And/or violation of Section 2151.31 is claimed since he was not taken immediately to the court or place of detention designated by the court upon being taken into custody. And violation of another paragraph of Section 2151.31 is claimed since he was fingerprinted on a criminal card.

The...