State v. Gladding

• Decision Date: 05 March 1990
• Docket Number: No. 88-L-13-200,88-L-13-200
• Citation: 585 N.E.2d 838,66 Ohio App.3d 502
• Parties: The STATE of Ohio, Appellee, v. GLADDING, Appellant. *
• Court: Ohio Court of Appeals

Page 502

66 Ohio App.3d 502

585 N.E.2d 838

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

No. 88-L-13-200.

Court of Appeals of Ohio, Eleventh District, Lake County.

Decided March 5, 1990.

Steven C. LaTourette, Pros. Atty., and Karen Lutz Kowall, Asst. Pros. Atty., Painseville, for appellee.

Paul Mancino, Jr., Cleveland, for appellant.

CHRISTLEY, Presiding Judge.

On March 30, 1987, appellant Donn Paul Gladding, a juvenile, was charged with delinquency for the offenses of rape, kidnapping and theft. On May 9, 1988, the juvenile court relinquished jurisdiction and transferred the case to the Lake County Common Pleas Court, where appellant was tried as an adult. Appellant was charged with three counts: Count I, rape in violation of R.C. 2907.02; Count II, kidnapping in violation of R.C. 2905.01; and Count III, receiving stolen property in violation of R.C. 2913.51.

The case went to jury trial on October 3, 1988 and appellant was found guilty on all three counts. On October 12, 1988, the court entered judgment and appellant was sentenced to life imprisonment on Count I, an indeterminate term of six to twenty-five years on Count II, to be served consecutively to Count I, and a definite term of two years on Count III, to be served concurrently with Count I, in the Ohio State Reformatory, Mansfield, Ohio. On October 28, 1988, appellant timely filed a notice of appeal and assigns the following as error:

"1. The defendant was denied due process of law when the juvenile court would not order an independent evaluation of the defendant prior to binding over the defendant to be tried as an adult.

"2. The defendant was denied his constitutional rights when the court admitted into evidence statements made by the defendant after he had been arrested and made a request for counsel.

"3. The court committed prejudicial error and denied the defendant his constitutional rights when it overruled the motion to suppress based upon an improper warrantless arrest of the defendant in violation of the United States and Ohio Constitutions.

"4. The defendant was denied due process of law when the court refused to suppress the identification of a defendant made through suggestive pre-trial identification procedures.

"5. The defendant was denied his constitutional rights of confrontation and cross-examination when the court permitted a police officer, detective Robert Jaksa, to testify as to an out-of-court identification made by Eric Prymas.

"6. The defendant was denied his right to present a defense when the court would not permit evidence of declarations against a penal interest made by Howard Gallagher to be offered in evidence.

"7. The court committed prejudicial error in denying the defendant due process of law when it permitted Barbara Caraballo to testify as to matters which did not constitute admissible evidence.

"8. The defendant was denied due process of law when it was not disclosed that the victim in this case, Jennifer Princic, had given a statement to an interviewing witness which contradicted her testimony at trial.

"9. The defendant was denied a fair trial when the court refused to grant a mistrial by reason of extraneous information coming before the trial jurors.

"10. The court committed prejudicial error in permitting not only the paying [sic ] of the tape recording of the defendant, but also to have allowed the jury to have a transcript of that hearing.

"11. The court committed prejudicial error and denied the defendant his constitutional rights when it overruled a motion to dismiss the kidnapping count of the indictment for the reason that the kidnapping count of the indictment failed to charge an offense.

"12. The defendant was denied a fair trial and the assistance of counsel where the court would not allow defense counsel to argue inferences during the course of closing argument.

"13. The defendant was denied due process of law when the court instructed the jury that the defendant had to prove an alibi by a preponderance of the evidence.

"14. The court committed prejudicial error and denied the defendant due process of law when instructing the jury that before the jury could consider the lesser included offense of gross sexual imposition it had to find the defendant not guilty of the greater offense of rape.

"15. The court committed prejudicial error and denied the defendant a fair trial when he refused to give either in form or in substance the requested special instructions tendered by the defendant.

"16. The court committed prejudicial error in overruling the motions for judgment of acquittal as there was insufficient evidence to permit a rational factfinder to find that there was sexual conduct as proscribed by the rape statute.

"17. The defendant was subjected to a cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and the cognate provisions of the Ohio Constitution when he was sentenced to a term of life imprisonment for the offense of rape."

* * * ¹

In his second assignment of error, appellant argues that he was denied his constitutional rights when the court failed to suppress written, recorded and oral statements, including incriminating statements, which he claims were illegally obtained after he had invoked his right to counsel. This assignment has no merit.

Appellant argues that since he had tried to contact counsel during his arrest, the police could not proceed further to administer Miranda warnings and take statements.

The record shows that during his arrest at his home, appellant's mother called an attorney. There is some dispute as to whether appellant himself tried to speak with that attorney during the arrest. In the suppression hearing, appellant testified that he said " * * * I want to talk to my laywer, and [the police] said no, and hung the phone up on me." Regardless of whether that actually occurred, there is no evidence of interrogation during the arrest. Appellant was escorted to the police cruiser and given his Miranda warnings in the cruiser immediately after the arrest. There is no testimony to show that appellant subsequently asserted his right to counsel while in the cruiser.

Later at the police station, in the presence of his mother, appellant was once again given his Miranda warnings. At this time the following colloquy took place:

"[Appellant:] Yes. There's only one question I have. If I wanted a lawyer, would I have to wait a couple days, or have him come down now?

"[Officer:] If you get one to come down now, you are very free to call one and get one to come down. The court won't appoint you one until you go to court and at that point, I would say to you don't talk to us till you go to court, okay, and talk to an attorney.

"But, if you want to talk to us without an attorney, this is the chance to do it. And, it's your decision and you and your mother talk about it, you have already.

"[Appellant:] I'd like to see if I can get my lawyer to come down.

"[Appellant's Mother:] He said he couldn't come down tonight, but he said he could talk to you tomorrow.

"[Appellant:] Well, I'll just go ahead with it.

"[Officer:] Okay, this is what the two of you want, to go ahead and do this?

"[Appellant:] Yes."

Both the state and appellant (although appellant's argument is somewhat vague) address the issue of whether or not appellant's mother could invoke his right to counsel for him at the time of his arrest preceding his arrival at the police station. However, this issue is a red herring. Even if appellant's mother could invoke his right to counsel at that time, or even if appellant himself did try to contact an attorney during the arrest, it makes no difference, since the right to counsel does not attach at the moment of arrest.

In support of his position, appellant cites Edwards v. Arizona (1981), 451 U.S. 477, 484, 101 S.Ct. 1880, 1884, 68 L.Ed.2d 378, 386, wherein the court held that "when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights." However, the facts of Edwards show that the defendant invoked his right to counsel during interrogation. In this case, appellant is claiming that his right to counsel was effectively invoked during his arrest.

In State v. DePew (1988), 38 Ohio St.3d 275, 278, 528 N.E.2d 542, 548, the court held:

"Appellant next argues that his right to counsel attached at the moment of his arrest, and that any interrogation was improper after the arrest, since appellant claims to have requested a lawyer at that time. Edwards v. Arizona (1981), 451 U.S. 477 [101 S.Ct. 1880, 68 L.Ed.2d 378]. However, as noted above, the trial court found that no such request was communicated to the officers at the time of the arrest. Moreover, the right to counsel has consistently been viewed as attaching at trial, and at 'critical' stages of the proceedings before trial where ' "the accused [is] confronted, just as at trial, by the procedural system, or by his expert adversary, or both." ' United States v. Gouveia (1984), 467 U.S. 180, 189 [104 S.Ct. 2292, 2298, 81 L.Ed.2d 146, 155], citing United States v. Ash (1973), 413 U.S. 300, 310 [93 S.Ct. 2568, 2574, 37 L.Ed.2d 619, 627]. The time of appellant's arrest cannot possibly be described as a 'critical' stage involving any such confrontation. All the evidence at the suppression hearing, including appellant's own testimony, established that there was no interrogation of appellant either at the time of the arrest or in the car on the way to the prosecutor's office. Mere arrest and transportation does not constitute a 'confrontation' similar to a trial. Appellant's confession was properly admitted into evidence." (Emphasis sic.)

Appellant tries to distinguish DePew on its facts. However, DePew is unequivocal as to when the...