State v. Edgell

• Decision Date: 17 May 1972
• Docket Number: No. 71-106,71-106
• Parties: , 59 O.O.2d 134 The STATE of Ohio, Appellee, v. EDGELL, Appellant.
• Court: Ohio Supreme Court

Page 103

30 Ohio St.2d 103

283 N.E.2d 145, 59 O.O.2d 134

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

No. 71-106.

Supreme Court of Ohio.

May 17, 1972.

Syllabus by the Court

1. The right to insist that the state prove a voluntary waiver of an accused's right not to make an in-custodial statement prior to its use against him is waived by the failure of the accused, when represented by counsel at a trial commenced since Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, to interpose an intrial objection to the admission of the statement.

2. An interruption in that part of a recorded in-custodial statement of an accused at which his Miranda rights are being explained to him is a transgression of the rule of that case if the prosecution fails to prove affirmatively that no coercive tactics whatsoever were employed during the interruption.

3. The use of a statement against an accused taken in transgression of Miranda may be found to be harmless error under the rule of Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.

4. Where the unchallenged evidence against an accused is so overwhelming that a conviction can be said to be inevitable beyond a reasonable doubt a Miranda transgression is harmless.

Appeal as of right from the affirmance of the death penalty by the Court of Appeals for Noble County.

Appellant was tried by a jury on two counts of first degree murder and found guilty without a recommendation of mercy. The Court of Appeals affirmed without opinion.

Lucien C. Young, Jr., Pros. Atty., for appellee.

Neal S. Tostenson, Cambridge, and Fred F. Fox, Caldwell, for appellant.

SCHNEIDER, Justice.

Matthew Zilka, for whose murder appellant was convicted, was missing for nearly 60 hours when appellant, accompanied by his girl friend and his brother, turned up in possession of decedent's automobile.

Acting on information given them by witnesses who saw decedent's car on the highway, the Guernsey County authorities arrested the three in front of a tavern in Pleasant City, Ohio. At that time, the police found in appellant's wallet Zilka's gasoline credit card, driver's license, social security card and the automobile license registration. Appellant's army uniform impressed with blood stains was found in the car. The decedent's empty wallet was found in the glove compartment. Zilka carried $135 when he left his home for work two mornings previously.

In the trunk of the automobile, the authorities found a lunch pail with an untouched lunch in it, some work clothing and a pair of boots, all the property of Zilka.

Upon being taken to the Guernsey County sheriff's office at about 7:00 p. m. the officers, alarmed as to the whereabouts of Zilka, started the questioning of appellant, which continued intermittently until sometime late in the afternoon of the following day, at which time he finally admitted that while he had been hitchhiking he was picked up by the decedent.

In the words of the sheriff of Guernsey County, who testified at the trial:

'. . . He said he got into an argument and he stabbed him. At that time he told me he stabbed him twice; and he had tied him up, and he told me it was in the area of State Route 340; and at that time I knew it was in Noble County, so . . . I did ask him if he got the money from Mr. Zilka at that time. He said, yes, he did, and I asked him how much, and he said he thought it was around $148 . . . I them asked him if he would go with us to where he had laid the body. . . . (Search parties had been organized and were searching all that afternoon in the general area where Zilka was last seen driving, two days before, but without success.) At first he said he didn't think he wanted to go, and I saked him a couple more times nd he said he would go. . . . When we got there Samuel (Edgell) was taken out of the car at the scene after we had found the place, and he showed us just where the area was, and he walked with us to the body in the direction, and I was slightly ahead of him there and I noticed the body, and then the coroner had taken over.'

The body was found in thick underbrush approximately 100 yards from the road, gagged, bound, and stabbed five times, once through the heart.

All of the foregoing evidence at the trial was unimpeached and uncontroverted. Defense counsel interposed no objection whatsoever to any of the testimony of the sheriff of Guernsey County, part of which has been quoted, even though no evidence was offered at the trial that the defendant, prior to making the quoted oral statement, was informed of his constitutional rights as prescribed by Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Moreover, defense counsel ventured no corss-examination whatsoever of that sheriff.

There is no evidence anywhere in the trial record that appellant demanded counsel, that he consulted with any other person, that he was denied normal food or sleep, that he was in any way threatened with bodily harm, or that any hope of reward or gain was extended to him.

Although we held in State v. Kassow (1971), 28 Ohio St.2d 141, 277 N.E.2d 435, that prior to the use of an in-custodial statement against the accused in its case in chief, the state has the burden of proving that the accused waived his right not to make the statement, and that the right to object to the state's failure of that burden is not waived by the failure to file a pre-trial motion to suppress, in no case have we held, nor do we perceive that Miranda so holds, that such objection is not waived by the failure of defendant, with the presence and assistance of counsel at a trial commenced since Miranda, to interpose an in-trial objection to the admission of the statement. ¹

As we have shown, such failure occurred at the trial of this case, and the appellant does not here, nor did he in the Court of Appeals, claim error in the admission of the testimony of his oral statement. ² Rather, his claim of error of constitutional proportions against him is directed solely to the introduction, as evidence in the state's case, of a tape-recorded statement taken personally by the prosecuting attorney of Noble County, to which he was removed after the body was discovered there. His pre-trial motion to suppress, directed solely to that statement, was overruled after a preliminary hearing at which appellant testified. (He did not take the stand at his trial.)

The critical part of the transcript of the tape-recording session occurs at the beginning and is reprinted in the footnote. ³ Were it not for the fact that the tape was interrupted for an indeterminate time, we would have no hesitation in upholding the trial court's decision to overrule the motion to suppress the taped statement. The evidence would amply support a finding that appellant was not abused, threatened, pressured or coerced in any way in Noble County. As to Guernsey County, his answer to a question on cross-examination, 'Did, did they (the Guernsey County officials) mistreat you in any way?' was, 'No, not other than telling me my fiancee was gonna be locked up in jail.' But he admited that 'Noble County didn't say nothing to me-Guernsey County already told me that (referring to his fiancee) and I just gathered that Noble County was going with Guernsey County.'

Even assuming that this claim of coercion should have been believed by the fact trier, we need not consider whether it was sufficient to affect either the voluntariness of the Guernsey County statement or the waiver of the right not to make it. But, see Phillips v. State (1966), 29 Wis.2d 521, 139 N.W.2d 41. The issue on the motion to suppress was the voluntariness of the Noble County statement and the waiver of the right not to make it. That appellant 'just gathered' that the same threat or promise, if in fact made, carried over to Noble County is insufficient in law to affect the validity of the statement there made.

Nor is the tape-recorded statement invalid for the reason that appellant did not expressly state his willingness to answer without the services of an attorney. See State v. Matt (1968), 251 Or. 134, 136, 444 P.2d 914, and Bond v. United States (10 Cir., 1968), 397 F.2d 162. Appellant did not indicate on the tape in any manner that he wished to consult counsel before speaking at the recording session. Miranda v. Arizona, supra (384 U.S. 436, at 444-445, 86 S.Ct. 1602).

However, we do hold that the interruption of the tape at the acute point where appellant was being questioned and warned respecting his desire for the services of counsel was a transgression of the Miranda rule and fatal to its use upon objection by the appellant. (He registered that objection by pre-trial motion to suppress.) The interruption was particularly crucial in that the tape itself indicates that the interruption was 'for quite a while, and we've talked with you.' What transpired during the interruption was not satisfactorily explained by the prosecution.

On the other hand, appellant's recorded statement which followed does not materially differ from the oral statement related at the trial by the Guernsey County sheriff. The former merely explains that the argument arose over appellant's request that Zilka drive him to Parkersburg, West Virginia, in payment of $30. It further explains that a knife appeared, that appellant stabbed Zilka in an attempt to defend himself, that he threw the knife away after the stabbing, and that after leaving the body in the place to which he subsequently led the police, he proceeded in the automobile to West Virginia, picked up his girl friend and then went to Massillon where his brother joined them.

As we have indicated, apart from the tape, the unchallenged evidence against appellant 'was so overwhelming' (Commonwealth v. Witherspoon (1971), 442 Pa. 597, 277 A.2d 827) that 'conviction was inevitable' (Moore v. Follette (2 Cir., 1970), 425 F.2d 925) beyond a reasonable doubt, as was...