State v. Duerr

• Decision Date: 17 November 1982
• Citation: 8 Ohio App.3d 404,8 OBR 526,457 N.E.2d 843
• Parties: , 8 O.B.R. 526 The STATE of Ohio, Appellee, v. DUERR, Appellant. *
• Court: Ohio Court of Appeals

Page 404

8 Ohio App.3d 404

457 N.E.2d 843, 8 O.B.R. 526

The STATE of Ohio, Appellee, v. DUERR, Appellant. ^*

Court of Appeals of Ohio, First District, Hamilton County.

Nov. 17, 1982.

Syllabus by the Court

1. Where the crime has already been committed, and where the conspirators are no longer concerned with questions of concealment or identity, an out-of-court statement of a co-conspirator of the defendant which confesses his complicity in the crime and implicates the defendant is not a statement made "during the course and in furtherance of the conspiracy" under the exception to the hearsay rule in Evid.R. 801(D)(2)(e).

2. A prospective juror who has no previously formed or expressed opinion of the defendant's guilt, but who is merely aware of some of the publicized circumstances of the case and of the fate of co-conspirators of the defendant, ought not to suffer a challenge for cause when the court is satisfied from an examination of the prospective juror or from other evidence that the prospective juror will render an impartial verdict according to the law and the evidence submitted to the jury at the trial.

Simon L. Leis, Jr., Pros. Atty., William E. Breyer, Asst. Pros. Atty., Carl W. Vollman and Michael R. Barrett, Cincinnati, for appellee.

Wm. Stewart Mathews II, James M. Rueger and Fred H. Hoefle, Cincinnati, for appellant.

PALMER, Presiding Judge.

The defendant-appellant, Catherine Duerr, was indicted on a charge of the aggravated murder of her adoptive father, Raymond Duerr. Indicted with her on the same charge were her mother, Carol Duerr, and Dennis Goerler. Separate trials were requested and granted. In due course, an evidentiary hearing was held on the defendant's motion to suppress, heard by stipulation along with similar motions by the other two defendants, and the motion was overruled. Immediately following the conclusion of the separate trials of Carol Duerr and Dennis Goerler, the instant matter proceeded to trial by jury, at the conclusion of which the defendant was found guilty as charged and was sentenced as appears of record. Appeal was timely filed, with five assignments of error raised for review, considered here, for reasons which will become obvious, other than in their numbered order of presentation.

The trial in the instant appeal, the third in point of time of the triumvirate indicated for the aggravated murder of Raymond Duerr, produced substantially the same testimony and evidence on behalf of the state as did the two earlier trials of Carol Duerr and Dennis Goerler, ¹ and has produced three assignments of error raising substantially the same questions explored and decided in State v. Duerr (1982), 8 Ohio App.3d 396, 457 N.E.2d 834. Because of this substantial identity, no attempt will be made herein to reproduce the analysis of fact and issue set forth fully in our disposition of that appeal, which we adopt as fully as though set forth herein. We will accordingly limit our discussion of these common assignments of error--the third, fourth, and fifth--to such points of dissimilarity or differentiation from those cases as may be said to arise under the record of the instant case.

In the case of the fourth assignment of error, which raises the issue of whether the state had adduced sufficient evidence of the corpus delicti prior to offering the defendant's confession, and the fifth assignment of error, which argues that the court erred in overruling the motion to suppress the confession, the issues and facts are essentially identical with those raised, considered, and ruled upon in State v. Duerr, supra. For the reasons set forth therein, these two assignments of error are overruled. In the case of the third assignment of error, which raises the issue of the independent proof of a conspiracy necessary to precede introduction of out-of-court statements of co-conspirators, we again adopt the rule of State v. Duerr, supra, that such independent proof of a conspiracy may be satisfied, as here, by the statement of the defendant herself. With certain minor and non-prejudicial exceptions, ² all such statements of co-conspirators postdated the introduction of Catherine Duerr's confession, which furnished proof of the conspiracy and thus provided the basis for such out-of-court declarations. We find no error prejudicial to the defendant and overrule the third assignment of error.

In her two remaining assignments of error, which will be considered in inverse order, issues unique to the instant appeal are presented for review. In her second assignment of error, the matter in dispute is stated thusly:

"The trial court erred to the prejudice of defendant-appellant by allowing evidence of extrajudicial inculpating statements made by co-defendants to be brought before the jury in her trial."

The citation within this assignment of error to those portions of the record relied upon to exemplify the error, ³ as well as the defendant's statement of the issue for review under the assignment of error, to wit: "[a]n accused's right of cross-examination secured by the confrontation clause of the Sixth Amendment is violated by the comparison, during trial, of extrajudicial statements made by a co-defendant inculpating the accused, with a statement given by the accused, which was previously introduced into evidence," seems to us to manifest a certain confusion of concepts. The defendant appears to postulate a general rule that the out-of-court confession of one conspirator may never be used against a co-conspirator because it violates the Sixth Amendment right of cross-examination, citing Bruton v. United States (1968), 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476. Yet Bruton involves a case where the co-conspirators were also co-defendants, and does not speak to the instant case, where separate trials were granted the conspirators pursuant to Crim.R. 14, a rule designed to preclude just such prejudicial effect as Bruton speaks to. Under the facts here, it seems to us, the issue of whether an out-of-court confession of a co-conspirator will be admitted into evidence becomes one that asks whether the confession is competent evidence, not whether it is constitutional. Obviously, any out-of-court statement offered for the truth of the matter asserted will affect to some degree the right of confrontation and cross-examination. Yet, we know that there are certain of such statements which, because of their special nature or qualities, are either excluded from the hearsay rule, Evid.R. 801(D), or may be qualified as competent by special statute or rule, Evid.R. 802, or are listed exceptions to the general rule of hearsay exclusion, Evid.R. 803. Clearly, then, not every hearsay proffer raises an insurmountable Sixth Amendment question. Ohio v. Roberts (1980), 448 U.S. 56, 63, 100 S.Ct. 2531, 2537, 65 L.Ed.2d 597.

We believe that the real issue raised in defendant's second assignment of error is whether the trial court erred in admitting the testimony in question because of general incompetence as hearsay. In addressing this problem, several things should be preliminarily noted. First, the confession, as such, of the defendant's co-conspirators, was not sought to be introduced into evidence. A review of footnote 3, where the disputed testimony is set out, demonstrates that the testimony of what the co-conspirators may have said in their confessions was at most indirect, i.e., it consisted of questions designed to elicit differences between the facts asserted in the defendant's confession and those contained in Goerler's earlier confession. The relevance of this series of questions is said to be an attempt by the state to counter the argument made by defendant in her counsel's opening and closing statements, that Goerler forced or influenced her to make the confession which was not, it was thus argued, a voluntary and knowing act on her part. The fact that there were significant differences in the two statements, argues the state, is relevant to counter this suggestion that it was dictated, in effect, by Goerler.

Second (assuming, for the moment, that the confessions, as such, were nevertheless somehow before the court), it seems apparent that the exclusion applicable to earlier statements of the co-conspirators admitted into evidence pursuant to Evid.R. 801(D)(2)(e), and made the subject of our disposition of the third assignment of error herein (and more fully in our disposition of the third assignment of error in State v. Duerr, supra ), is not available in the instance of the confessions. It seems clear that when Goerler confessed his complicity in the crime and implicated Carol Duerr and the defendant as co-conspirators, the confession could no longer be said to have been a statement made "during the course and in furtherance of the conspiracy," Evid.R. 801(D)(2)(e), not even with the qualification offered by State v. Shelton (1977), 51 Ohio St.2d 68, 364 N.E.2d 1152 , as to statements made after the crime but while the conspirators were still concerned with concealing their conduct or identity. When Goerler confessed, all questions of concealment of conduct and identity had passed.

These subsidiary matters behind us, we can progress to the principal question raised in this assignment of error: does the testimony in question constitute hearsay inadmissible by Evid.R. 802, and did the court commit prejudicial error in admitting it? We think not. As we earlier commented, the questioning was indirect. With one possible exception relating to whether Goerler confessed that he was to receive an automobile as his part of the bargain--to which the answer was negative and which we cannot conceive was prejudicial--all of the questions were directed to what the defendant said that may have supplemented or differed from Goerler's confession. The defendant argues that this sort of questioning necessarily put Goerler's confession before the jury, i.e., if Witness A disagrees with Witness B when A...