State v. Donna Barlow, 84-LW-3734
| Decision Date | 20 April 1984 |
| Docket Number | 84-LW-3734,WD-83-80 |
| Parties | State of Ohio, APPELLEE, v. Donna Barlow, APPELLANT. C. A. |
| Court | Ohio Court of Appeals |
DECISION AND JOURNAL ENTRY
This cause came on to be heard upon the record in the trial court. Each assignment of error was reviewed by the court and upon review the following disposition made:
This cause comes on appeal from the Bowling Green Municipal Court. Appellant was arrested and charged with driving while intoxicated in violation of R.C. 4511.19. Appellant filed a motion in limine requesting the trial court to prohibit the state from introducing evidence of appellant's prior convictions for driving while intoxicated. The trial court denied said motion. Appellant entered a plea of no contest was convicted, sentenced and now appeals. Appellant's assignments of error state as follows:
In her second and third assignments of error, appellant contends that admissions she made concerning her prior convictions for driving while intoxicated should have been excluded from evidence based on the fact that she was not given Miranda warnings. See Miranda v. Arizona (1966), 384 U.S. 436. The stipulations made by the parties indicate that Miranda warnings were not given to appellant. In McCarty v. Herdman (6th Cir., 1983), 716 F. 2d 361, the court held that the warnings required by the Miranda decision should apply to all custodial interrogations, including those where the defendant is charged with a misdemeanor. Appellant argues that this court should follow the decision in McCarty.
In State v. Pyle (1969), 19 Ohio St. 2d 64, cert. denied (1970) 396 U.S. 1007, the court held that Miranda warnings were not required in misdemeanor cases. See also Clay v. Riddle (4th Cir., 1976), 541 F. 2d 456; State v. Cupp (1973), 36 Ohio App. 2d 224 (holding that there is no requirement that Miranda warnings be given to one arrested for driving while intoxicated; State v. Gregg, Jr., Unreported Opinion, Court of Appeals of Hamilton County (First Dist.), C.A. Nos. C-800513, C-800576, decided June 3, 1981 (Miranda inapplicable to driving while intoxicated misdemeanor charge); State of Ohio v. Thomas R. Poole, Unreported Decision, Court of Appeals of Brown County (Twelfth Dist.), C.A. No. 407, decided May 4, 1983 (Miranda warnings are not required for misdemeanor arrests). Although we find the reasoning in McCarty, supra, to be persuasive, this court is bound by decisions of the Supreme Court of Ohio. See City of Toledo v. Frazier (1967), 10 Ohio App. 2d 51; In re Agler (1968), 15 Ohio App. 2d 240. Finding that the Ohio Supreme Court's decision in Pyle, supra, controls the facts of the instant case, we must conclude that Miranda warnings were not required in this case or in any other case involving a misdemeanor. Accordingly, appellant's second and third assignments of error are not well taken.
In her first assignment of error, appellant argues that the admission into evidence of her prior convictions for driving while intoxicated was inadmissible pursuant to Evid. R. 404(B), and Evid. R. 403 providing for the exclusion of relevant evidence on grounds of prejudice.
The record in the instant case indicates that the appellant refused to submit to a chemical test for intoxication. See R.C. 4511.191. In Westerville v. Cunningham (1968), 15 Ohio St. 2d 121, the court held that evidence that the defendant refused to take such a test was admissible in evidence as the same had probative value on the question of whether the defendant was intoxicated at the time of such refusal. The statements made by the appellant to the arresting officer in the instant case were to the effect that the appellant had been arrested for driving while intoxicated before and that she was familiar with the procedures involved.
Evidence Rule 404(B) provides as follows:
Under the facts of the instant case, we find that appellant's admissions to the arresting officer were admissible for the purpose of showing appellant's motive for not submitting to the chemical test for intoxication and appellant's knowledge of what such a chemical test might reveal. As such, appellant's admissions were highly probative on the question of whether she was intoxicated at the time she refused to submit to a chemical test. We conclude that appellant's admissions regarding her prior arrests for driving while intoxicated were properly admitted for purposes othe than to prove the character of a person in order to show that she acted in conformity therewith. See Evid. R. 404(B). Inasmuch as the statements were made by appellant, we conclude that their admission into evidence did not constitute unfair prejudice under Evid. R. 403. Accordingly, appellant's first assignment of error is not well taken.
On consideration whereof, the court finds that the defendant was not prejudiced or prevented from having a fair hearing and judgment of the Bowling Green Municipal Court is affirmed. Cause remanded for execution of sentence and assessment of costs against appellant.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. See also Supp. R. 4, amended 1/1/80.
HANDWORK, J., dissenting. Because I believe that the majority has misconstrued fundamental concepts of federalism and stare decision, I must dissent. The following dissenting opinion is, however, bifurcated. Part II sets forth the the principal reason why I cannot concur in the majority's disturbingly obtuse disregard of the Fifth Amendment, the Due Process and Supremacy Clauses, and recent decisional law thereunder. My dissent in part II applies to both this case and State v. Penelope Kinser, unreported decision, Wood County Court of Appeals (6th Dist.), C.A. No. WD-83-67, decided April 20, 1984. Part I, which follows, is limited to the evidentiary issue presented by appellant Barlow's first assignment of error.
Appellant's statements to the arresting officer that she had been previously arrested for and/or convicted of driving while intoxicated (DWI) was not, by any stretch of the legal imagination, admissible at trial in the prosecution's case-in-chief. The trial court implicitly (and incorrectly) ruled otherwise when it denied appellant's motion in limine, which sought to exclude those statements from use at trial as substantive evidence.
Evidence Rule 403(A) provides:
Evidence Rule 404(B) states:
Finally, Evidence Rule 801 states, in pertinent part:
In this case, the stipulated facts reveal that after procurring appellant's social security number and processing the same through a "L.E.A.D.s" computer file, and after learning that the computer "read-out" disclosed her previous conviction for DWI, the arresting officer then asked appellant whether she had ever been arrested before for DWI. Appellant responded affirmatively, stating that she "[had] been through this before."®1¯
Footnote 1 The stipulated facts also indicate that neither party is certain of what the officer's exact words were, but both parties agree that the question and answer, as stated in the text, are reasonably close approximation of the actual exchange.
In addressing appellant Barlow's first assignment of error the simple issue to be resolved is whether such statements were (or would have been) admissible at trial. Appellant contends that her statements, as evidence of previous "bad acts" or crimes, were inadmissible under both Evid. R. 403(A) and 404(B). The prosecution, by contrast, maintains that appellant's...
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