State v. Cowans

• Decision Date: 19 April 1967
• Docket Number: No. 40202,40202
• Parties: , 39 O.O.2d 97 The STATE of Ohio, Appellee, v. COWANS, Appellant.
• Court: Ohio Supreme Court

Page 96

10 Ohio St.2d 96

227 N.E.2d 201, 39 O.O.2d 97

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

No. 40202.

Supreme Court of Ohio.

April 19, 1967.

Syllabus by the Court

1. The exclusionary rule of McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479, that a confession obtained after an 'unnecessary delay' by the police in the arraignment of the accused is inadmissible at trial is a rule that has no application to trials in state courts. (Gallegos v. State of Nebraska, 342 U.S. 55, 72 S.Ct. 141, 96 L.Ed. 86, followed.)

2. The two exclusionary rules of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, which pertain to confessions obtained by the police as a result of in custody interrogation and after an infringement of the accused's constitutional rights, have no application to trials that had begun before those rules were announced. (State v. Carder, 9 Ohio St.2d 1, 222 N.E.2d 620, followed.)

3. A confession is not involuntary and thus inadmissible in a state trial where the record indicates only the following coercive influences: that the requirements of Miranda v. State of Arizona were not met, that the defendant was inadequately fed during his detention by the police, and that the interrogation of the defendant was four hours long.

4. Where a confession, voluntary or coerced, is obtained from a defendant by the police (1) after he has been indicted and (2) while counsel is not present and (3) where the defendant has not knowingly and intelligently waived his constitutional rights, it is error to admit testimony relating to such confession into evidence at defendant's trial. (Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, and McLeod v. Ohio, 381 U.S. 356, 85 S.Ct. 1556, 14 L.Ed.2d 682, followed. State v. Arrington, 3 Ohio St.2d 61, 209 N.E.2d 207, distinguished.)

5. The failure of counsel to claim the benefits of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, or McLeod v. Ohio, 381 U.S. 356, 85 S.Ct. 1556, at trial does not bar review of that claim when made on appeal where at the time of the trial those decisions had not yet been announced. (O'Connor v. Ohio, 385 U.S. 92, 87 S.Ct. 252, 17 L.Ed.2d 189, followed.)

6. Where the trial court has admitted into evidence testimony relating to a confession obtained in violation of the federal Constitution, Section 2945.83 of the Revised Code is inapplicable and such error is prejudicial if 'there is a reasonable possibility that the evidence complained of might have contributed to the conviction.' (Fahy v. State of Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171, and Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, followed.)

On December 28, 1963, two Columbus police officers arrested one Ernest Eugene Jinks in a Columbus restaurant. Immediately after the arrest, they found a package of heroin on the restaurant floor. The defendant, Harold J. Cowans, was in the restaurant near Jinks but was not arrested at that time. Jinks was then conveyed to Dayton where the warrant for his arrest for grand larceny had been issued.

On January 5, 1964, the defendant went to Circleville to claim his automobile. He had previously loaned it to one Barnett who was being held by the Circleville police in connection with a robbery. The defendant drove there in Barnett's newly acquired automobile. On arrival, defendant's person was searched. The police asked the defendant if he would consent to a search of the automobile which he had driven there. He did, and the police found a concealed weapon. He was thereupon held for carrying a concealed weapon. He was detained for three days without arraignment. He was not adequately fed. He was not questioned during the first two days, but on the third day, he was questioned for four hours. He was promised leniency if he co-operated and confessed. Counsel for defendant attempted to see the defendant during the interrogation but was not permitted to do so until the police were finished. The defendant confessed in detail how he had gone to New York City three times to procure narcotics (hereinafter referred to as the 'January confession').

On February 3, 1964, the Grand Jury of Franklin County returned an indictment against the defendant for conspiracy to possess heroin. The defendant was thereafter arrested by the Columbus police. Defendant claims he asked if he could call his attorney, but that this angered the police. Defendant was questioned in relays by four to seven officers at various times. He was held for three or four days. He was fed little. He was not permitted to sleep. He was promised probation if he confessed. The officers testified that he confessed (hereinafter referred to as the 'February confession') immediately and voluntarily because someone threatened his wife and child. Defendant testified that he was so worn down and confused that he does not know whether he confessed or when he confessed.

On April 23, 1964, the trial began. The state offered the testimony of six witnesses. One testified that the state's exhibits were heroin; one related the January confession; three related the February confession; and one-Barnett-testified that he had personally accompanied the defendant on a trip to New York to purchase narcotics.

The defendant testified in his own behalf and denied the narcotics activity and claimed that his confessions were not freely made.

In rebuttal, a police officer testified for the state that Jinks had told him that the heroin the police found in the Columbus restaurant on December 28, 1963, belonged to the defendant.

The jury returned a verdict of guilty. The Court of Appeals affirmed the judgment of the Common Pleas Court. On motion for leave to appeal, this court took jurisdiction of the cause.

C. Howard Johnson, Pros. Atty., and James A. Pearson, Columbus, for appellee.

William J. Davis, Columbus, for appellant.

HERBERT, Judge.

The defendant-appellant claims that the trial court erred in admitting into evidence (1) the January confession, (2) the February confession, and (3) the rebuttal testimony of a police officer. The claims will be considered in that order.

The January confession is attacked as (a) the product of an illegal detention, McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943), and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957); (b) the product of an infringement of defendant's right to silence and right to counsel, Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 12 L.Ed.2d 694 (1966); and (c) the product on an overborne mind, e. g., Davis v. State of North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966).

In McNabb and in Mallory, the United States Supreme Court held that a confession obtained after an 'unnecessary delay' by the police in the arraignment of the accused is inadmissible. However, the Supreme Court has clearly held that the McNabb-Mallory exclusionary rule is a gloss on Rule 5(a) of the Federal Rules of Criminal Procedure and has no application to state proceedings, e. g., Gallegos v. State of Nebraska, 342 U.S. 55, 63-64, 72 S.Ct. 141, 96 L.Ed. 86 (1951). Hence, the McNabb-Mallory rule is not available to the defendant.

In Escobedo and in Miranda, the United States Supreme Court held that where the police obtain a confession from the accused as the result of in-custody interrogation and after a denial of his right to counsel and right to silence, such confession may not be used at the trial. In Escobedo, the police refused to allow the accused to consult with his counsel. In Miranda, the police failed to inform the accused of his rights. However, here it is not material whether the police denied the accused his rights by misfeasance (Escobedo) or by nonfeasance (Miranda) or whether they denied them at all, for in Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), the Supreme Court held that the Escobedo rule applies only to trials begun after the promulgation of that decision-June 22, 1964, and that the Miranda rule likewise applies only to trials begun after the promulgation of that decision-June 13, 1966. The trial in the case at bar began on April 23, 1964. Hence the exclusionary rules of Escobedo and Miranda are not available to the defendant. See State v. Carder, 9 Ohio St.2d 1, 222 N.E.2d 620 (1966).

In Davis v. State of North Carolina, supra, 384 U.S. 737, at 741, 86 S.Ct. 1761, at 1764, 16 L.Ed.2d 895, at 898, the United States Supreme Court held that the fact 'that a defendant was not advised of his right to remain silent or of his right respecting counsel at the outset of interrogation, as is now required by Miranda, is a significant factor in considering the voluntariness of statements later made.' Under Miranda, where there is an interrogation in the absence of counsel which brings forth a confession, 'a heavy burden rests on the Government to demonstrate that the defendant knowingly and intelligently waived' his rights.

Even though the state did not meet that burden on the present record, we cannot say that the January confession was the product of an overborne mind. The police ignored the accused for two days and then on the third day questioned him for four hours. Even though he may have been underfed, we do not believe that the aggregation of coercive influences was sufficient to impair the defendant's ability to make a 'free' and 'rational' choice. In determining whether the coercive influences of in-custody interrogation have been 'too coercive' in the particular case, the Supreme Court has focused primarily on the length of detention and the peculiar mental infirmities and...